> 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OP  LAW 


WHITEHOUSE   EQUITY   PRACTICE 


?his  set  will  be  folloAved  shortly  by  a  pamphlet,  furnished  gratis, 
containing  Michigan  and  New  Jersey  laws  passed  by  the  1915  legisla- 
tures, in  so  far  as  they  affect  chancery  practice.  These  acts  were 
passed  after  volume  2  of  this  work  had  been  printed,  and  have  not  as 
yet  become  effective.  It  will  be  seen  at  a  glance  that  the  changes  are 
most  trifling  in  character.  Biennial  supplements  to  WHITEHOUSE 
EQUITY  PRACTICE  may  be  issued,  showing  all  changes  due  to  legis- 
lative enactment  or  new  court  rules. 


EQUITY  PRACTICE 

STATE  AND  FEDERAL 


WITH  STATUTES  RULES  FORMS 
AND  PRECEDENTS 


By  ROBERT  TREAT  WHITEHOUSE 

Formerly  United  States  Attorney  for  the 
District  of  Maine 


IN  THREE  VOLUMES 


VOLUME  I 


CHICAGO 

CALL  AG  HAN  AND  COMPANY 

1915 


COPYRIGHT,  1915, 
BY 

Egbert  Treat  Wiiitehouse 


1- 


PREFACE 

It  should  be  stated  at  the  outset  that  this  is  not  a  work 
on  general  equity  jurisprudence.  It  does  not  purport  to 
deal  with  questions  of  substantive  law,  but  solely  with 
matters  of  equity  pleading  and  practice.  The  scope  of 
general  equity  jurisdiction  is  considered  briefly  in  the 
introductory  chapters,  confining  the  discussion  strictly  to 
jurisdiction  in  its  strict  and  j^roper  meaning  of  the  power 
to  take  cognizance  of  and  decide  a  given  question.  This 
discussion  was  thought  desirable*  and  necessary  in  order 
that  the  practitioner  may  know  in  the  first  instance 
whether  or  not  he  may  properly  proceed  in  equity,  and 
also  in  order  to  show  what  states  still  administer  equity 
jurisdiction  by  distinct  equitable  methods  of  pleading 
and  practice,  and  the  nature  and  extent  of  their  respec- 
tive systems.  Apart  from  the  above  inquiry,  the  maxims 
and  principles  of  equity  jurisprudence  in  general,  which 
determine  how  the  cause  shall  be  decided  after  it  has  been 
heard  upon  its  merits,  must  be  sought  elsewhere  in  the 
several  extensive  treatises  upon  the  subject. 

The  purpose  of  the  work  is  to  furnish  a  close  practical 
work  for  the  use  of  equity  practitioners  in  all  those  states 
which  still  retain  separate  methods  of  equity  procedure, 
as  distinct  from  code  states  which  provide  a  uniform 
system  of  pleading  for  both  equity  and  common  law. 
The  scope  of  the  work  includes  equity  proceedings  in  the 
Federal  courts  and  in  the  courts  of  equity  of  the  following 
states,  which  alone  have  separate  equity  procedure,  viz. : 
Alabama,  Delaware,  Florida,  Illinois,  Maine,  Maryland, 
Massachusetts,  Michigan,  Mississippi,  New  Hampshire, 
New  Jersey,  Pennsylvania,  Ehode  Island,  Tennessee,  Ver- 
mont,  Virginia,   and   West   Virginia.     Of   these   states 

iii 


595971 


iv  PREFACE 

Alabama,  Delaware,  Mississippi,  New  Jersey  and  Ten- 
nessee have  separate  chancery  courts;  in  the  remainder, 
and  in  the  Federal  courts,  equity  is  administered  by  the 
same  judges  who  preside  on  the  law  si^ie  of  the  courts 
but  sitting  as  courts  of  equity. 

It  was  not  deemed  feasible  or  desirable  to  attempt  to 
make  this  work  a  complete  encyclopedia  of  every  decided 
case  old  or  new  in  these  jurisdictions,  since  many  of  the 
decisions  found  are  either  unimi^ortant  or  merely  cumu- 
lative, and  the  result  would  be  too  unwieldy  and  expensive. 
It  has  been  the  aim  of  the  author  to  include  all  leading 
and  important  cases,  and  all  the  latest  decisions  of  value, 
the  date  of  each  decision  being  as  a  rule  given.  Where 
the  cases  upon  any  point  are  numerous,  they  have  been 
classified  under  the  names  of  the  several  states  alphabeti- 
cally arranged,  giving  each  state  sufficient  representation 
by  one  or  more  of  its  best  considered  cases. 

Certain  subject  matters  properly  included  in  the  chapter 
on  Equitable  Remedies,  such  as  Injunctions  and  Eeceivers, 
are  of  sufficient  scope  to  require  an  entire  separate  volume 
for  their  complete  presentation.  Manifestly,  therefore,  it 
was  impossible  to  attempt  to  exhaust  these  subjects  in 
this  work.  Consequently  it  has  been  possible  to  give 
only  the  outline  and  elements  of  such  questions  as  when 
injunctions  will  be  granted  or  receivers  appointed,  and 
what  are  the  powers  and  duties  of  receivers,  but  to  treat 
more  completely  questions  of  strict  procedure  or  practice 
in  connection  with  these  subjects. 

The  first  volume  of  this  work  deals  with  pleading  and 
practice;  the  second  volume  includes  the  equity  statutes 
and  rules,  and  the  third  volume  contains  forms  and  pre- 
cedents for  equity  practice  in  the  several  states  having 
the  separate  equity  procedure  and  in  the  Federal  courts. 
The  forms  in  each  instance  have  been  prepared  with  the 
help  of  qualified  local  practitioners  in  the  various  states^ 
and  should  be  authoritative  and  reliable.  The  formal 
parts  of  each  pleading  peculiar  to  the  practice  of  each 


PREFACE  V 

state  are  first  given  and  then  forms  and  precedents  under 
the  several  branches  of  equity  jurisdiction  derived  from 
the  practice  of  the  different  states.  Forms  particularly 
for  use  in  the  Federal  court  are  placed  together  under  a 
special  heading.  Outside  of  the  formal  requisites,  the 
forms  for  each  branch  of  jurisdiction  will  be  found  to 
have  great  similiarity  and  may  thus  be  used  interchange- 
ably, i.  e.,  if  a  satisfactory  form  is  not  found  for  Specific 
Performance,  for  example,  under  the  practice  of  one  state, 
a  form  taken  from  the  practice  of  another  may  be  inserted 
between  the  formal  parts  of  the  first,  and  be  found  avail- 
able and  sufficient. 

That  this  work  as  thus  carried  out,  including  as  it  does 
the  statutes,  rules  and  forms  of  the  several  states  having 
separate  equity  jurisdiction,  and  of  the  Federal  courts, 
and  following  closely  the  pleading  and  practice  of  each, 
may  not  only  be  found  a  reliable  guide  for  the  active 
practitioner,  but  may  also  help  somewhat  to  standardize, 
unify  and  improve  equity  procedure  in  this  country, — is 
the  sincere  hope  of  the  author. 

The  author  desires  to  acknowledge  his  obligation  to  his 
correspondents  in  other  states,  who  have  furnished  him 
with  forms,  rules  and  statutes;  to  Clement  F.  Robinson, 
Esq.,  of  the  Maine  ]mv,  for  assistance  on  chapters  1,  4  to 
6,  8  to  16,  and  chapter  26,  of  volume  I,  in  collecting  and 
compiling  the  rules,  statutes  and  forms  in  volumes  II  and 
III,  and  in  the  correction  of  proof  and  the  i)reparation  of 
the  index;  to  Henry  A.  Peabody,  Esq.,  of  the  Maine  bar, 
for  assistance  on  chapters  17  to  29  and  on  chapter  7,  of 
volume  I,  and  in  the  preparation  of  the  index;  and  to 
Bertram  S.  Peacock,  Esq.,  of  the  Maine  bar,  for  assist- 
ance on  chapters  1  to  5,  of  volume  T,  and  in  collecting 
forms,  rules  and  statutes. 

ROBEET  TkEAT  WhITEHOUSE. 

Portland,  Maine,  January,  1915. 


TABLE  OF  CONTENTS 

VOLUME  I 


CHAPTER  I 

INTRODUCTION 

§         1.  Equity  defined    1 

§        2.  Scope  of  this  work 1 

§        3.  Origin  of  equity  jurisdiction  and  procedure 2 

§        4.  American    equity    jurisdiction 2 

§         5.  Effect  of  statutes  in  enlarging  substantive  jurisdiction  of  equity  2 

§         6.  Statutes  limiting  substantive  jurisdiction  of  equity 2 

§         7.  Effect  of  judicial  construction  in  enlarging  or  diminishing  the 

jurisdiction  of  equity '. 4 

§         8.  Effect  of  statutes  on  procedure 5 

§         9.  Effect  of  chancery  rules  on  procedure 5 

§       10.  Systems  of  administration  of  equitable  principles (i 

§      11.  Classification  of  states  by  systems  in  force (5 

§      12.  Conclusion     7 

CHAPTER  II 

GENERAL  EQUITY  .H'RISDICTION 

§      13.  General  equity  jurisdiction 9 

§      14.  Jurisdiction    further    defined 10 

§      1.5.  The  extent  of  general  equity  jurisdiction 11 

§       16.  Classification     11 

§      17.  What  constitutes  subject  matter 11 

§       IS.  Exclusive  jurisdiction   12 

§      19.  Concurrent  jurisdiction    14 

§      20.  —  Meaning  of  the   term 14 

§      21.  Concurrent  equitable  jurisdiction  of  purely  legal  rights 1;1 

§      22.  Where  the  law  has  encroached  on  the  concurrent  jurisdiction  of 

equity     17 

§      23.  —  English    doctrine    20 

§      24.  ■ —  American  doctrine — Law  and  equity  states 22 

§      2.5.  Equity  jurisdiction  of  the  Federal  courts 27 

§      26.  Concurrent  equity  jurisdiction  of  the  Federal  courts 2S 

§      27.  —  Interpretation  of  the  Supreme  Court 2S 

§      28.  —  Conclusion    29 

§      29.  Concurrent  jurisdiction  continued — Right  to  trial  by  jury 30 

§      30.  Cogniyance  first  taken  by  court  of  law 33 

§      31.  Auxiliary   jurisdiction    33 

§      32.  Discovery   from    parties 34 

§      33.  Principles  governing  pure  bill  for  discovery 37 

§      34.  Witnesses — Perpetuation   of  testimony,  testimony  de  bene  esse 

and  in  foreign  countries 41 

§      35.  Incidental  jurisdiction    42 

§      36.  Examples  of  incidental  jurisdiction 43 

§      37.  Incidental  relief  where  primary  relief  not  granted 44 

§      38.  Conclusion     " 45 

vii 


viii  EQUITY  PRACTICE 

CHAPTEE  III 

JURISDICTION  IN  RESPECT  TO  PERSONS,  TERRITORY,  AMOUNT 

§      39.  Persons    46 

§      40.  Territory     48 

§      40a.  Territorial  subdivisions    51 

§      41.  Amount   51 

CHAPTER  IV 

PARTIES 

§      42.  Parties — In   general    53 

§      43.  Possible   parties— Plainti if    53 

§      44.  —  The    state    55 

§      45.  —  Infants     59 

§      46.  —  Idiots   and  lunatics    63 

§      47.  Possible  parties   defendant — The   state 65 

§      48.  —  Married  women — Infants,  idiots  and  lunatics 67 

§      49.  Fundamental  principles  governing  joinder  of  parties 71 

§      50.  —  General   rule    72 

§      51.  Material    interest    73 

§      52.  Subject  matter 73 

§      53.  Should  be  made  parties 75 

§      54.  Proper    parties 78 

§      55.  Formal  parties 84 

§      56.  Proper   parties   substantial 87 

§      57.  Persons  out  of  the  jurisdiction 89 

§      58.  Unknown    persons    91 

§      59.  Numerous    persons    92 

§      60.  Creditors '   bills    96 

§      61.  Stockholders '   bills    99 

§      62.  Bills  of   peace 100 

§      63.  Persons  represented  and- persons  with  separable  interests 101 

§      64.  Necessary  parties    103 

§      64a.  Improper  parties   106 

§      65.  Bills  to  redeem  from  mortajages — Parties  plaintiff 109 

§      66.  —  Parties    defendant    '^ 112 

§      67.  Bills  to   foreclose— Plaintiffs 114 

§      68.  —  Defendants    117 

§      69.  Trusts    123 

§      70.  Partners   and  joint  interests 129 

§      71.  Assignments    135 

§      72.  Accounts    139 

§      73.  Heirs  and   devisees 141 

§      74.  Executors   and    administrators 143 

§      75.  Other    cashes 145 

§      76.  Defects  as  to  parties — Nonjoinder 149 

§       77.  —  Misjoinder     155 

CHAPTER  Y 

ORIGINAL  BILLS 

§      80.  Classification     158 

§      81.  Orgiual  bills  not  praying  for  relief 158 

§      82.  Original  bills  praying  for  relief 159 

§      83.  The  common  bill^How  framed 159 

§      84.  —  The   title    165 

§      85.  —  The   address    165 

§      86.  —  Names  and  residences  of  parties 166 


CONTENTS  OF  VOLIBIE  I 


IX 


§      87.  The  stating  part 168 

§      88.  —  What  it  should   state 169 

§      89.  Plaintiff  must  show  his  interest  or  title 169 

§      90.  Plaintiff  must  state  a  case  relievable  in  equity 172 

§      91.  Adequate  remedy  at  law 173 

§      92.  Facts   justifying   relief 176 

§  93.  The  plaintiff  must  show  that  the  defendant  is  the  person  against 

whom  relief  is  justified 180 

§  94.  The  bill  must  show  privity  between  plaintiff  and  defendant.  . . .  182 

§      9.5.  How  the  bill  should  state  the  case — In  general 182 

§      96.  —  Certainty    183 

§      97.  —  Certainty  in  stating  title 185 

§      98.  Written  instruments  and  exhibits 187 

§      99.  Certainty  in  stating  grounds  of  relief 191 

§    100.  Evidence    194 

§    101.  Charges  in  the  alternative 195 

§    102.  Uncertainty — How   taken   advantage   of 196 

§     103.  Judicial    notice    197 

§    104.  Conclusions    of    law 197 

§    105.  Information  and  belief 198 

§    106.  Impertinence     198 

§    107.  Scandal    199 

§    108.  Exceptions  to  bills 200 

§    109.  Multifariousness    200 

§    no.  Misjoinder  of  causes 201 

§    111.  — Discretion  of  the  court 203 

§    1 12.  Multifariousness   proper    205 

§    113.  —  Causes  must  be  distinct 209 

§    114.  —  Each  cause  must  be  sufficient 214 

§    115.  Single  cause  must  not  be  divided 215 

§    116.  Objection  of  multifariousness — How  taken 216 

§    117.  The  prayer   for  relief 218 

§    1 18.  Special  relief   218 

§    119.  General   relief    220 

§    120.  Alternative   relief    226 

§    121.  Objection  how  taken — Amendments 227 

§    122.  The  prayer  for  process 228 

§    123.  Signature     230 

§    124.  Verification     232 

§    125.  Bills  of  interpleader 235 

§    126.  —  Frame     236 

§    127.  Procedure  in  interpleader 241 

§    128.  Bills  in  the  nature  of  interpleader 244 

§    129.  Bills  for  instructions 246 

CHAPTEE  VI 

BILLS  NOT  OKIGINAL 

§    130.  Classification 249 

§  131.  Class  I- — Bills  supplementing  or  reviving  former  bills — Defects 

and  abatements 250 

§  132.  Amendments  may  serve  as  supplemental  bills  and  bills  of  revivor  253 

§    133.  Supplemental  bills    254 

§    134.  —  Frame     260 

§    135.  —  Procedure     261 

§    136.  Bills  in  the  nature  of  supplemental  bills 262 

§    137.  Bills  of  revivor 263 

§    138.  —Frame    267 

§    139.  Bills  in  the  nature  of  revivor 26^ 

§    140.  Bills  of  revivor  and  supplement 269 

§  141.  Class  II — Bills  not  supplementing  or  reviving  but  relating  to 

original  bills — Cross  bills 269 


X  EQUITY  PRACTICE 

§    142.  —  Frame    276 

§    143.  Bills   of   review. 279 

§    144.  —  Error  of  law 280 

§    145.  - —  Newly  discovered  matter 2S2 

§    146.  —  Parties,  filing,  etc 288 

§    147.  —  Frame    292 

§    148.  —  Defence    293 

§    149.  Bills  of  review  with  revivor  or  supplement 294 

§    150.  Bills  in  the  nature  of  liills  of  review 294 

§  151.  Bills  in  the  nature  of  review  to  impeach  decrees  for  fraud,  acci- 
dent,  or  mistake 295 

§    152.  Bills  for  relief  against  judgments 299 

§    153.  Characteristics  of  both  classes  of  bills — Parties 305 

§  154.  — Jurisdiction — Courts  within  the  state  and  out  of  the  state.  .  .  306 

§    155.  Bills  to  enforce   decrees 307 

CHAPTEE  VII 

VENUE,  FILING  AND  SERVICE 

§    156.  Venue    310 

§    157.  —  Local  actions 310 

§    158.  —  Personal  and  transitory  actions 311 

§    159.  —  Actions  by  the  state 312 

§    160.  —  Actions    for    redemption,    foreclosure,    specific   performance, 

quieting  title,  and  jiartition 313 

§    160a.  Objections  and  waiver 316 

§    161.  Filing     317 

§    162.  Process     318 

§    163.  Service     319 

I  164.  Eegular  service  as  of  course — (1)  By  personal  service  of  bill  in 
hand  or  reading  subpoena  or  leaving  at  last  and  usual  place 

of  abode  of  resident  defendants 321 

§    165.  —  Service  on  infants 325 

§    166.  —  Insane  persons    327 

§    167.  —  Corporations     328 

§  168.  —  (2)  Service  by  inserting  bill  in  writ  of  attachment  and  serv- 
ing as  in  actions  of  law  on  resident  defendants 332 

§  169.  —  (3)  Service  by  order  of  notice  issuing  out  of  clerk's  office 
as  of  course  requiring  either  (a)  personal  service  or  (b)  serv- 
ice by  publication  on  non-residents 332 

§  170.  Special  service  by  order  of  court — (1)  Service  on  resident  de- 
fendants by  special  order  of  court  on  bill 335 

§  171.  —  (2)  Service  on  non-resident  defendants  by  special  order  of 
notice  by  court  on  bill  requiring  either   (a)   personal  service 

or  (b)  service  by  publication 336 

§    172.     (3)   Service  on  non-residents  by  special  order  of  court  on  bill 

inserted  in  writ  of  attachment  as  in  action  at  law 337 

§    173.  Substituted  service    33S 

§    174.  Acknowledgment  of   service 339 

§    175.  Defects  of  service  cured 340 

CHAPTER   VIII 

APPEARANCE 

§  176.  Regular  or  gratis 341 

§  177.  Regular    appearance — When    made 342 

§  178.  —  How  made   .343 

§  179.  Infants  and  insane  persons 344 

§  ISO.  Unauthori2ed   appearance    345 

§  181.  General   appearance    346 


CONTENTS  OF  VOLUME  I  xi 

§    182.  Effect  of  general  appearance 348 

§    183.  Amendment  and  withdrawal  of  appearance 351 

§    184.  Special  appearance   352 

§    185.  —  How  made   353 

§    186.  Effect  of  special  appearance 354 

CHAPTER  IX 

TAKING  THE  BILL  PEO  COXFESSO 

§  187.  Taking  the  bill  pro  confesso  for  wan*  of  appearance 357 

§  188.  —  For   want  of   defence 358 

§  189.  Several    defendants     3(53 

§  190.  Infants     364 

§  191.  Decree  pro  confesso  merely  interlocutory 364 

§  192.  Subsequent  proceedings   365 

§  193.  Subsequent  rights  of  defendant 367 

§  194.  Opening  the  decree — In  general 370 

§  195.  Opening  interlocutory  decree  pro  confesso 372 

§  196.  Opening  final  decree  on  the  bill  taken  pro  confesso 373 

§  197.  Procedure  in  opening  the  decree 376 

CHAPTEE  X 
INTEELOCUTOEY  APPLICATIONS 

§    198.  In   general    378 

§    199.'  ^Motions— Who  may  make 378 

§    200.  Motions    of    course 379 

§    201.  Special  motions — Ex  parte 379 

§    202.  Special  motions — Upon  notice 380 

§    203.  Hearing  on  motions 380 

§    204.  Eenewal   of   motions 381 

§    205.  Petitions — In  general   381 

§    206.  Form    of    petition 382 

§    207.  Notice   of   petition 382 

§    208.  Summons  to  show  cause 384 

8    209.  Hearing  of   petitions 384 

§    210.  Amendments   385 

§    211.  Petitions    of    intervention 385 

§    212.  Form  of  petition  to  intervene 388 

CHAPTEE  XI 
DEMUEEEES 

§  213.  Defences  in  general 390 

§  214.  Demurrers — General    nature    391 

§  215.  Different  grounds  of   demurrer 394 

§  216.  Demurrers  to  the  jurisdiction 394 

§  217.  —  Common    law     395 

§  218.  —  Probate    396 

§  219.  —  Bankruptcy 396 

§  220.  —  Admiralty    397 

§  221.  Demurrers  to  the  person — Partial  disability  of  plaintiff 397 

§  222.  Demurrers  as  to  amount 398 

§  223.  Demurrers  to  the  substance  of  the  bill 398 

§  224.  Demurrers  as  to  matters  of  form 401 

§  225.  Grounds  of  demurrer  to  amended  bills  and  bills  not  original.  .  .  .  402 

§  226.  Joinder  of  grounds  of  demurrer 403 

§  227.  Kinds  of  demurrer 404 


xii  EQUITY  PRACTICE 

§  228.  Demurrers  to  the  whole  bill 404 

§  229.  Demurrers  to  part  of  the  bill 405 

§  230.  General   demurrers    406 

§  231.  Special  demurrers   408 

§  232.  Demurrers   ore   tenus 408 

§  233.  Speaking   demurrers    409 

§  234.  Whether  demurrers  are  overruled  by  plea  or  answer 410 

§  235.  Demurrers  inserted  in   answers 412 

§  236.  Form    of   demurrers 413 

§  237.  Signature  with  certificate  of  counsel 414 

§  238.  Filing    demurrers    415 

§  239.  Setting  cause  for  hearing  on  demurrer 416 

§  240.  Effect  of  sustaining  demurrer 418 

§  241.  Effect  of  overruling  demurrer 421 


CHAPTER  XII 

PLEAS 

§    242.  General  nature  of  pleas 425 

§    243.  Plea  mav  be  to  whole  bill  or  part 427 

§    244.  Kinds   of  pleas 427 

§    245.  Pleas  in  abatement — To  the  jiirisdiction 428 

§    246.  Pleas  in  abatement— To  the  bill 430 

§    247.  Pleas    in   bar 431 

§    248.  Pleas  supported  br  answers 434 

§    249.  Pleas  not  overruled  by  answers 435 

§    250.  Pleas  inserted  in  answers 436 

§    251.  Form  of  pleas 436 

§    252.  Signature  and  verification  of  pleas 437 

§    253.  Filing  pleas    438 

§    254.  Setting   plea    for   argument 439 

§    255.  Setting  plea  for  hearing  on  replication 440 

§    256.  Allowing  pleas  on  argument 442 

§    257.  Allowing  pleas  on  replication 443 

§    258.  Overruling  pleas  on  argument 444 

§    259.  Overruling  pleas  on  replication 446 

CHAPTEE  XIII 

ANSWEES 

§    260.  General  nature  of  an  answer 447 

§    261.  Defences  available  in  an  answer 448 

§    262.  —  Consistencv    453 

§    263.  —  No  affirmative  relief 4.53 

I    264.  —  Sufficiency    454 

§    265.  Sufficiency  of  an  answer  as  a  pleading 456 

§    266.  —  Exceptions  to   general  rule 459 

§    267.  Form  of  answers 460 

§    268.  Signature     462 

§    269.  Oath     463 

§    270.  Filing 466 

§    271.  Taking  answers  off  the  file 468 

§    272.  Exceptions  to  answers 468 

§    273.  Exceptions  for  insufficiency 471 

§    274.  Exceptions  for  impertinence  and  scandal 473 

§    275.  Form   of   exceptions 475 

§    276.  Procedure    on    exceptions 4j_o 

§    277.  Further   answers    ^^° 

§    278.  Amendment  of  answers 480 

§    279.  Time  within  which  amendments  may  be  allowed 482 


CONTENTS  OF  VOLUME  I  xiii 

§    280.  Amendments — How  made    ^^^ 

§    281.  Setting  cause  for  hearing  on  bill  and  answer 4»0 

§    282.  Answer  as  evidence 

CHAPTEE  XIV 
DISCLAIMEKS 

§  283.  General  nature  of  a  disclaimer 496 

§  284.  Disclaimer  accompanied  by  answer. *^o 

§  28.5.  Disclaimer  by  one  of  several  defendants *»' 

§  286.  Disclaimer    by    mistake *^° 

"  287.  Disclaimer   at  hearing ^° 


§    288.  Form   of    disclaimer ^on 

§    289.  Kemoving  disclaimer  from  the  file— Exceptions 4^^ 

'"    290.  Keplication  not  required  to  disclaimer |jjy 


499 

CU       LU      UlcV,Ac».ini*^i 

§    291.  Effect   of    disclaimer. 


CHAPTER  XV 

EQUITABLE  DEFENCES 

§    292.  Equitable  defences  in  action  at  law 502 

§    293.  —  Requisites  and  limitations ^||' 

§    294.  —  Frame   vf,Q 

§    295.  Equitable  defence  how  met ^Ij*^ 

§    296.  —  Effect     ^{" 

§    297.  Equitable  replications    

CHAPTEE  XVI 

EEPLICATIONS 

§  298.  General  nature  of  a  replication 512 

§  299.  Form  of  replication 

§  300.  Waiver   of   replication ^j'^ 

§  301.  Time  for  filing  replication "i 

§  302.  Replications  nunc  pro  tune 

§  303.  Withdrawal   of   replication 

CHAPTER  XVII 

AMENDMENTS 

§    304.  In  general— What  may  be  amended 520 

§    305.  Changing  the  cause  of  action - 

§    306.  When  amendments  may  be  allowed ^-^ 

k    307.  Amendments  before  issue •  ■  •  • , - 

§    308.  Amendments  after  issue  on  demurrer,  plea  or  answer o   i 

§    309.  Amendments    after    replication ^^^ 

§    310.  —  After    master's   report g„ 

§    311.  —  After  taking  out  evidence ^^^ 

§    312.  —  At  the  final  hearing ^^^ 

§    313.  Motion  for  leave  to  amend ^^^ 

§    .S14.  —  Notice  and  hearing ^gg 

§    315.  Amendments — How  made   g^g 

8    '^16    Irregular  amendments    •  •  ". ^qq 

§    317'.  Amendments  by  changing  from  law  to  equity  and  vice  versa.  . .  538 

§    318.  Change  from  law  to  equity— How  made 

8    319.  Change  from  equity  to  law— How  made I"  "  '  ' '^Ip^  '  ' 

§    320.  On  si^ch  amendments,  new  service  or  appearance  ^^^ '^^^^^^-  g^g 
Costs    


xiv  EQUITY  PRACTICE 

CHAPTER  XVIII 

DISMISSING  BILLS  AND  STAYING  PROCEEDINGS 

§  321.  In   general    544 

§  322.  Dismissal   of   bills   by    plaintiff 544 

§  323.  Dismissal  by  plaintiff  after  decree 546 

§  324.  Dismissal  where  a  i)laintiff  sues  on  behalf  of  self  and  others.  .  .  547 

§  325.  Dismissal  by  one  of  several  plaintiffs 548 

§  326.  Dismissal  of  unauthorized  suits 549 

§  327.  Dismissal  of  bills  and  staying  proceedings  by  defendant  on  sub- 
mission to  plaintiff  "s   demand 549 

§  328.  Dismissal  for  want  of  prosecution 550 

§  329.  Dismissal  on  abatement  of  suit 552 

§  330.  Dismissal  for  want  of  jurisdiction 553 

§  331.  Dismissal— How  effected   553 

§  332.  Effect    of    dismissal 555 

§  333.  Reinstatement     555 

§  334.  Election  between  law  and  equity 555 

CHAPTER  XIX 

EVIDENCE 

§  335.  Tn    general    558 

§  336.  What  must  be  proved — Constructive  admissions 558 

§  337.  —  Actual  admissions    559 

§  338.  —  Admissions   by    agreement 560 

§  339.  What   evidence    is   proper   and   admissible — Rules   the   same   in 

equity  as  at  law 561 

§  340.  Evidence  how  taken — Documentary 563 

§  341.  Production  of  documents  by  subpoena  duces  tecum 564 

§  342.  Production  of  documents  by  order  of  court 565 

§  343.  Inspection    ! 567 

§  344.  Evidence,   how  taken — Testimony 568 

§  345.  Evidence  taken  out  of  the  state 570 

§  346.  Compelling  testimonv — Within  the  state 571 

§  347.  —Out  of  the  state.' 573 

§  348.  Objections   to    evidence 574 

§  349.  Time  for  taking  testimony 576 

§  350.  Publication 577 

§  351.  Evidence    on    report 578 

§  352.  Evidence  on  appeal 579 

CHAPTER  XX 

MASTERS  TN  CHANCERY 

§    353.  Appointment  of  masters 580 

§    354.  General  nature  of  oflRce 581 

§    355.  What  may  be  referred  to  a  master 581 

§    356.  When  a  reference  may  be  ordered 584 

§    357.  The  order  of  reference 585 

§    358.  Setting  reference  for  hearing 587 

§    359.  Hearing  before   master 588 

§    360.  Evidence  before  the  master 589 

§    361.  IMaster  's  report   592 

§    362.  Form  of  report 596 

§    363.  Settling  master 's  report 598 

§    364.  Confirmation    of   report 599 

§    365.  Amendment  and  correction  of  report 600 

I    366.  Irregularities — How  remedied    601 


CONTEXTS  OF  VOLUME  I  xv 

367.  Exceptions     _  gQo 

368.  Form   of  excei^tions gQ^ 

369.  Time   for   filing  exceptions "  "  '  ^  605 

370.  Ee-reference     qqj 

371.  Proceedings  under  a  re-reference 608 

372.  Compensation     609 


CHAPTEE  XXI 

ISSUES  TO  JUEIES 

§    373.  Nature  and  purposes  of  issues 611 

§    374.  Constitutional  right  to  .jury  trial  in  equity  under  Federal  con- 
stitution      " 611 

§    375.  —  Under    state    constitutions 612 

§    376.  Waiver  of  right  of  jury  trial 614 

§    377.  Where  no  constitutional  right 616 

§    378.  Where  issues  may  be  properly  ordered 617 

§    379.  When  issues  should  be  applied  for 619 

§    380.  Framing   issues    619 

§    381.  Order  of  court  directing  issues 620 

§    382.  Trial  of  an   issue 6'"'1 

§    383.  Weight    of   verdict .  .  625 

§    384.  Exceptions    626 

§    385.  New  trial    628 

§    386.  Appeals    630 


CHAPTEE  XXII 

FINAL  PIEAEIXCt 

§  387.  Setting  cause  for  hearing 632 

§  388.  Continuances     635 

§  389.  Before  whom  hearings  are  held 635 

§  390.  Proceedings  at  the  hearing — Eeading  the  pleadings 635 

§  391.  —  Introducing  the  evidence 636 

§  392.  —  The  arguments    637 

§  393.  —  Modifying    interlocutory    orders 637 

§  394.  Objections  at  the  hearing 637 

§  395.  Dismissal  of  bills  at  the  final  hearing 638 

§  396.  Betaining  cause  for  further  relief. 639 

§  397.  Eetaining  a  cause  to  await  action  at  law 640 


CHAPTEE  XXIII 
DECEEES 

S    398.  Ceueral  natuj-e  of  decrees 641 

§    399.  Kinds  of  decrees 642 

§    400.  Decrees   nisi    643 

§    401.  Decrees  nunc  pro  tune 643 

§    402.  Supplemental  decrees   644 

§    403.  Conditional    decrees     645 

§    404.  Pro    forma    decrees 645 

§    405.  Decrees  on  default  at  hearing 646 

§    406.  Consent  decrees    647 

§    407.  Decrees  against  infants 649 

§    408.  Decrees  must  follow  pleadings  and  proof 651 

S    409.  Flexibility  and  completeness  of  decrees 652 

"5    410.  Purchaser  pendente  lite  bound  by  decree 653 

§    411.  Frame  of  decrees 653 


xvi  EQUITY  PRACTICE 

§  412.  Drawing,  filing  and  entering  decrees 654 

§  413.  Power  of  judge  to  render  decree  in  vacation 656 

§  414.  Correction   of   decrees — Interlocutory 658 

§  415.  Correction  of  final  decree  before  entry 659 

§  416.  Eehearing  on  interlocutory  decrees  and  final  decrees  before  entry  659 

§  417.  Correction  of  final  decrees  after  entry 662 

§  418.  Enforcement  of  decrees — Kinds  of  process 664 

§  419.  Equity  process — Writ  of  attachment 668 

§  420.  —  The  writ  of  assistance 668 

§  421.  Common  law  process — Decree  for  payment  of  money 672 

§  422.  Contempt   defined    675 

§  423.  Proceedings  in  case  of  contempt  by  failure  to  perform  decrees 

other  than  the  payment  of  money 676 

§  424.  Sales   under   decrees 683 

§  425.  Resale    before    confirmation 685 

§  426.  Setting  aside  sale  after  confirmation 687 

§  427.  Enforcing  sale  against  purchaser 688 

CHAPTER  XXIV 

THE  WRIT  NE  EXEAT 

§  428.  General    nature    690 

§  429.  In  what  cases  issued 691 

§  4:{0.  How   obtained    693 

§  431.  The    affidavit    694 

§  432.  P^orm    of    writ 695 

§  433.  The  bail  bond 696 

§  434.  Discharge  of  the  writ 697 

CHAPTER  XXV 

EQUITABLE  REMEDIES 

§  435.  General   classification    699 

§  436.  —  Exclusive  and  concurrent 700 

§  437.  —  In  personam  and  in  rem 701 

§  438.  Interpleader,  receivers,  injunction,  etc 706 

§  439.   Reformation     ' 706 

§  440.  Cancellation    708 

§  441.  Partition   711 

§  442.  Redemption     713 

§  443.  Strict  foreclosure 714 

§  444.  Foreclosure  by  judicial  sale 715 

§  445.  Deficiency  decree  on  foreclosure 716 

§  446.  Marshaling    assets     717 

§  447.  Creditors'  bills  for  reaching  and  applying  property 718 

§  448.  Dissolution   of   partnership 721 

§  449.  Account     723 

§  450.  Money   recoveries — Damages    725 


CHAPTER  XXVI 

INJUNCTIONS 

§    451.  Definition    729 

§    452.  Kinds  of  injunctions 729 

§    453.  When  granted    731 

§    454.  Granting  of   injunctions  discretionary 734 

§    455.  The    injunction    bill " 736 

§    456.  Preliminary   injunctions — In   general 739 


CONTENTS  OF  VOLIBIE  I  xvii 

§  457.  Preliminary  injunctions  on  hearing 739 

§  458.  Preliminary  injunctions   ex   parte — Eestraining  orders 742 

§  459.  Injunctions  pending   the   cause 745 

§  460.  Injunction  bonds — When  required  or  permitted 746 

§  461.  Nature  of  the  injunction  bond ^47 

§  462.  Dam.ages  on  bonds 7;^9 

§  463.  The   interlocutory    injunction   order 752 

§  464.  The  -writ  of  injunction 755 

§  465.  Effect  of  amendments  upon  injunctions 7.56 

§  466.  Dissolution    of    injunctions 756 

§  467.  Grounds    of    dissolution J60 

§  468.  Dissolution  for  want  of  equity  in  the  bill 762 

§  469.  Dissolution  upon  denials  of  answer 763 

§  470.  Partial  dissolution,  modification,  and  reinstatement 766 

§  471.  Discharge    of    injunctions 767 

§  472.  Perpetual    injunctions    767 

§  473.  Enforcement    of    injunctions 770 

CHAPTER  XXVII 

EECEIVEES 

§    474.  Definition  of  receiver 773 

§    475.  Who  may  be  appointed  receiver 774 

§    476.  In  what  cases  a  receiver  may  be  appointed 775 

§    477.  Receivers  of  the  property  of  incompetents .••:••  '''''^ 

§  478.  Receivers  in  suits  between  partners,  co-owners,  and  conflicting 

claimants     _ '^"~ 

§  479.  Receivers   in    suits   regarding  express   and   constructive   trusts, 

liens,    corporations    ^78 

§    480.  Receivers   after   decrees 782 

§    481.  Appointment — How    obtained    783 

§    482.  Order  appointing  receiver 788 

§    483.  Receiver 's    bond    ^^0 

§    484.  Instructions  to  receivers 792 

§    485.  Title  of  receiver 793 

§    486.  Possession    of    receiver 794 

§    487.  Powers   of   receivers '97 

§    488.  Liability  of  receivers 801 

§    489.  Suits    by    receivers 804 

§    490.  Suits    against   receivers 808 

§    491.  Foreign  jurisdiction  of  receivers — Comity 812 

§    492.  Ancillary  receivers    816 

§    493.  Sales    by   receivers 818 

§    494.  Receivers '  certificates   8_1 

§    495.  Receivers '  accounts   822 

§    496.  Compensation   of   receivers 823 

§    497.  Removal    of    receivers. 826 

§    498.  Discharge  of  receivers 828 

CHAPTER  XXVIII 

EXCEPTIONS  AND  APPEALS 

§  499.  In   general    830 

§  500.  On   report    830 

§  501.  When  causes  may  properly  be  reported 831 

§  502.  Exceptions     .  .  . .' 832 

§  503.  Exceptions — How    made    up 835 

§  504.  Exceptions — When   heard    836 

§  505.  Who  may  appeal 837 

§  506.  In  what  cases  allowed 839 


xviii  EQUITY  PRACTICE 

§    507,  Appeals  from  final  decrees — "When  and  how  taken 840 

§    508.  Appeal  bond  846 

§  509.  Orders  for  protection  of  parties  pending  appeal  from  final  decree.  846 

§    510.  AVhat  constitutes  a  final  decree  for  purposes  of  appeal 848 

§    511.  Appeals  from  interlocutory   decrees 850 

§    512.  Appeals  from  joint  decrees 852 

§    513.  Extension  of  time  for  appeal 853 

§    514.  Making  up  the  case  for  the  appellate  court 854 

§    515.  Effect  of  decree  of  chancellor  or  single  justice 857 

§  '516.  Objections    on    appeal 858 

§    517.  Further  evidence  on  axipeal 859 

§    518.  Decision  on  appeal 859 

§    519.  Mandate    862 

§    520.  Rehearing  on  appeal 864 


CHAPTER  XXIX 
COSTS 

§    521.  Costs   are   discretionary 867 

§    522.  Costs  in  favor  of  prevailing  party 869 

§    523.  Costs   against  prevailing  party 871 

§    524.  Costs  against  neither  party 872 

§    525.  Apportioning  costs   874 

§    526.  Costs  out  of  the  fund 875 

§    527.  Several   parties    877 

§    528.  Costs  on  amendments 877 

§    529.  Costs  of  interlocutory  proceedings 878 

§    530.  Costs  of  interpleader '. 878 

§    531.  Taxation  of  costs 879 

§    532.  Costs  as  between  party  and  party  or  solicitor  and  client. 881 

§    533.  Decree   for   costs 882 

§    534.  Security  for  costs 883 

§    535.  Costs   on   appeal 887 


CONTENTS  OF  VOLUME  II 

CHAPTER  XXX 
ALABAMA 

Statutes 

536.  State  may  bring  suit  in  chancery ....  892 

537.  How  persons  of  unsound  mind  may  sue 892 

538.  Joint  demand  may  be  prosecuted  aga.nst  one  defendant 892 

539.  Suits — How   commenced 892 

540.  Limitation   893 

541.  Filing  of  bill  commencement  of  suit 893 

542.  In  what  district  filed 893 

543.  Frame  of  bill 893 

544.  Multifariousness     893 

545.  Waiver  of  oath  to  answer 894 

546.  Issue  of  summons 894 

547.  Service  of  summons 894 

548.  Summons  executed  in  another  county  returned  by  mail 894 

549.  Mailed   with'.n   five   days ." 894 

550.  How  parties  of  unsound  mind  may  be  made  defendants 894 

551.  Defendant  entitled  to  copy  of  bill 895 

552.  Summons   as   to   non-residents 895 

553.  Publication    as   to   non-residents 895 

554.  Fee  for  publication  deposited  with  register 895 


XIX 


895 


CONTENTS  OF  VOLUME  II 

ALABAMA  (Stat.— cont.) 

§  555.  Publication  and  proceedings  against  defendants  whose  names 

are   unknown 

§    556.  Time  for  answer — Decree  pro  confesso 896 

§    557.  When  answer  compelled  by  attachment "   896 

§    558.  Arrest   under    attachment — Discharge    on    bond 896 

§    559.  Suit  on  attachment  bond 896 

§    560.  Defendant  imprisoned  until  he  files  answer  or  bond 897 

§    561.  Oath  to  answer — By  whom  administered 897 

§    562.  Protection  from  full  answer 897 

§    563.  Application  to  answer  specially 897 

§    564.  All  defenses  may  be  set  up  in  answer 897 

§    56o.  Effect  of  answer  on  hearing  on  bill  and  answer 897 

§  566.  Rule  requiring  two  witnesses  to  overcome  sworn  answer  modified  898 

§    567.  Answer  may  be  made  cross-bill 898 

§    568.  Answer  to  such  matter 898 

§    569.  Revivor  of  suit  by  defendant 898 

§    570.  General  and  special  demurrers 899 

§    571.  No  replication   899 

§    572.  Dismissal  of  suit  in  vacation 899 

§    573.  Amendments  befoi-e  answer 899 

§    574.  Amendments  after  service  and  before  answer 899 

§    575.  Amendments  before  decree,  on  terms 900 

§    576.  Register  may  allow  amendments  after  answer 900 

§    577.  Answer  to  amendment 900 

§    578.  What  objections  set  for  separate  hearing 901 

§  579.  Decree,    when    objection    for    want    of    parties    first    taken    at 

hearing   90i 

§    580.  Exceptions  to  answers 90i 

§    581.  Notices — When  served  on  solicitors 901 

§    582.  Notice  to  parties  in  default 901 

§    583.  Defendant  may  examine  complainant 901 

§    584.  Complainant  may  examine  defendant 902 

§    585.  Copy  of  interrogatories  to  be  served 902 

§    586.  Exceptions  to  such  interrogatories 902 

§    587.  Answers  to  such  interrogatories  evidence 902 

§    588.  Oral  examination  of  witnesses 903 

§    589.  Notice  of  oral  examination 903 

§    590.  Testimony  by  interrogatories 903 

§    591.  Rules  as  to  competency  same  as  at  law 9O3 

§    592.  Testimony,  when  taken '  *    903 

§    593.  Proof  of  exhibits  proved  before  register 903 

§    594.  When  testimony  may  be  retaken 903 

§    595.  Commissions  to  take  testimony 904 

§    596.  Service  of  interrogatories 904 

§    597.  If  adverse  party  a  non-resident 904 

§    598.  Rebutting    interrogatories 904 

§    599.  Register  may  act  as  commissioner,  unless  objected  to 904 

§    600.  Power  to  issue  subpoenas — Examination  of  witnesses 905 

§  601.  Subpoenas  executed  by  sheriff  or  constable — Proof  of  default.  .   905 

§    602.  Compensation  of  witness 905 

§    603.  Fees  for  taking  depositions 905 

§    604.  Default  of  witness — Penalty 905 

§  605.  Defaulting  witness  may  be  committed,  without  bail,   until  he 

consents   to  testify 906 

§    606.  Proceedings  before  the  register  on  reference 906 

§    607.  Notice  of  the  day  of  hearing — Proceedings  thereon 906 

§    608.  Authority  of  the  register  on  reference.  . 906 

§    609.  Evidence  in  cause  used  before  register 907 

§    610.  Exceptions  to  register  's  decisions 907 

§    611.  Decrees  pro  confesso 907 

§  612.  On    such    decrees    allegations    of    bill    taken    as    admitted — 

Exceptions    907 


XX  EQUITY  PRACTICE 

ALABAMA  (Stat.— cont.) 

§    613.  Decree   after    decree   pro   confesso   is   taken  in  term   time   or 

vacation     908 

§    G14.  Not  heard  on  day  of  taking  decree 908 

§    615.  Defendant  may  contest  decree  on  merits,  or  appear  on  reference  908 

§    616.  Decree  set  aside  on  full  answer 908 

§    617.  When  set  aside  as  against  defendant  on  publication 909 

§    618.  Answer  after  publication  of  testimony 909 

§    619.  Decree  without  personal  service  not  absolute  for  twelve  months 

— Copy  sent  defendant 909 

§    620.  Petition  to  set  aside  decree  and  defend  on  merits 909 

§    621.  "When  testimony  on  file  used  by  either  party 910 

§    622.  When  decree  becomes  conclusive 910 

§    623.  To  whom  preceding  section  not  applicable 910 

§    624.  Eights    and    liabilities    of    parties    without    service    extend    to 

representatives   910 

§    625.  Execution  of  decrees  on  bills  taken  pro  confesso  without  service  910 

§    626.  Suspension  of  decree  on  presenting  a  bill  of  review 911 

§    627.  Application  to  file  such  bills — When  made 911 

§    628.  Writ  of  ne  exeat — Equitable  attachment 911 

§    629.  Chancellors  may  examine  answers  in  such  cases  in  vacation.  . .  .   912 
§    630.  Attachments  on  legal  demands  to  subject  equitable  effects....   912 

§    631.  Attachments  mav  issue  before  judgment  for  debt 912 

§    632.  Propertv  to  be  specified 912 

§    633.  Replevy  of  property  attached 91 2 

§    634.  Replevy  bond  to  be  returned 912 

§    635.  Lien  on  such  attachments 913 

§    636.  If  property  not  delivered,  execution  issues  on  replevy  bond.  .  .  .   913 

§    637.  Writs  of  ne  exeat  and  attachment — Orders  in  respect  to 913 

§    638.  Equitable  attachment  for  benefit  of  surety  in  written  contract.  .    913 

§    639.  When  such  attachments  may  be  dissolved 913 

§    640.  Decree  in  favor  of  surety 914 

§    641.  Creditor  may  intervene 914 

§    642.  Garnishments  may   issue 914 

§    643.  Writs  of  seizure  in  aid  of  suit  commenced  in  chancery 914 

§    644.  Affidavit  to  be  made  by  plaintiff " 914 

§    645.  Property  restored  on  giving  bond 915 

§    646.  When  property  delivered  to  plaintiff 915 

§    647.  Return  of  writs  and  bonds 915 

§    648.  Decree  when  plaintiff  sustains  his  claim 915 

§    649.  Liabilitv  of  plaintiff  and  his  sureties 915 

§    650.  Trial  of  issues  of  fact 916 

§    651.  Evidence  in  such  trials — Parties  examined 916 

§    652.  Proceedings  to  summon  jury,  etc.,  before  chancellor 916 

§    653.  Pay  of  jurors  and  how  taxed 916 

§    654.  Practice  in  partition  suits  when  title  or  adverse  claim  involved.   916 

§    655.  Call  of  docket — Setting  causes  for  hearing 917 

§    656.  Decrees  in  writing — Rendered  in  term  time  or  vacation 917 

§    657.  Cause  may  be  referred  to  arbitration 917 

§    658.  Orders  and  decrees  by  consent 917 

§    659.  Liens  and  prioiity  of  decrees 918 

§    660.  Decrees  for  conveyances  and  releases  operate  as  such — Executed 

by  commissioner   918 

§    661.  Decrees — How   rendered 918 

§    662.  Decrees  enforced  by  attachment  or  sequestration 918 

§    663.  Decree  for  performance  of  some  act  to  prescribe  time 919 

§    664.  Attachment  on  affidavit  of  failure  to  perform 919 

§    665.  If  attachment  not  executed,  sequestration  follows 919 

§    666.  Decrees — How  enforced   919 

§    667.  Return  day  of  such  process 919 

§    668.  Execution  on  decrees  for  enforcement  of  liens 919 

§    669.  Decree  on  partition 920 

§    670.  Sheriff  liable  for  failure  to  collect  money 920 

§    671.  Costs  at  discretion  of  chancellor 920 


CONTENTS  OF  VOLUME  II  xxi 

ALABAMA  (Stat.— cont.) 

§    672.  Sales  to  be  made  by  register 920 

§    673.  Forthcoming  bond   920 

§    674.  Effect   of    forfeiture 921 

§    675.  Protection  of  tenant  having  crop  planted  on  lands  decreed  to  be 

sold    921 

§    676.  Kules  of  practice  adopted  by  supreme  court 921 

§    677.  Chancellors  may  adopt  rules  to  facilitate  business 922 

§    678.  By    whom    granted 922 

§    679.  Issuing  injunction,  by  registers 922 

§    680.  Injunction  of  judgment  a  release  of  errors 922 

§    681.  Bond   on  injunction   of  judgment 922 

§    682.  Bond  on  injunction  after  recovery  of  lands 922 

§    683.  Bond  on  injunction  in  other  cases 923 

§    684.  Notice  of  injunction  to  stay  a  judgment  served  on  the  attorney 

is  valid    923 

§    685.  Application     for     injunction     refused — How     renewed — When 

refusal   final    923 

§    686.  Application  to  justice  of  supreme  court 923 

§    687.  Eefusal  to  grant  injunction  indorsed  on  bill 923 

§    688.  On  dissolution  of  injunction,  damages  granted  for  delay 924 

§    689.  Effect  of  bond  on  dissolution  of  injunction  of  a  judgment — 

Execution     924 

§    690.  Execution   for  costs 924 

§    691.  If  injunction  of  judgment  is  dissolved  pending  suit,  refunding 

bond   required    924 

§    692.  Motion  to  dissolve  or  discharge  in  vacation 924 

§    693.  Order  for  injunction  made  before  bill  filed,  valid 925 

§    693a.  Setting  time  and  place  for  hearing  apjilication 925 

§    694.  Evidence  or  testimony  admissible  upon  hearing 925 

§    695.  Fiat  indorsed   upon   bill 925 

§    696.  Appeal  from  order  granting  or  refusing  writ 925 

§    697.  Motion  to  dissolve  injunction 926 

§    698.  Eestraining   order 926 

§    699.  Renewing  application  to  judge  of  supreme  court 926 

§    700.  Evidence  upon  hearing  of  motion  to  dissolve 926 

§    701.  Bond   for  reinstatement   of  injunction 926 

§    702.  Receivers  appointed  by  chancellor  or  register 927 

§    703.  Appointment  by  register — Suspension   of  order 927 

§    704.  Complainant  must  give  bond  before  appointment  of  receiver..  927 

§    705.  Any  person  damaged  may  sue  on  bond 927 

§    706.  Receiver  may  be  sued  without  leave  of  court 928 

§    707.  Service  of  process  on  receivers 928 

§    708.  Appeals  to  supreme  court  on  all  final  judgments 928 

§    709.  Appeals  from  certain  interlocutory  decrees 928 

§    710.  Appeal     on     orders     sustaining,     dissolving,     or     discharging 

injunctions    929 

§    711.  Appeal  from  order  appointing  or  refusing  receiver 929 

§    712.  Appeals  from  partial  settlements 929 

§    713.  Supersedeas  bond    930 

§    714.  Supersedeas  bond   when   judgment   or   decree   for   payment   of 

money,  and  for  other  acts 930 

§    715.  Supersedeas  bond   in   other   cases 931 

§    716.  Limitation  of  appeals 931 

§    717.  Unknown  parties — Notice — Shares  paid  into  court 931 

§    718.  Jurisdiction  of  chancery  court  to  divide  or  sell  for  division.  .  .  .  932 

§    719.  Controverted  title  and  all  equities  disposed  of 932 

§    720.  Partition  without  commissioners — Owelty 932 

§    721.  Person   in   possession   of   and   claiming  lands   may   file   bill  to 

clear  title    933 

§    722.  Contents  of  bill 933 

§    723.  Contents   of   answer 933 

§    724.  .lury  trial  on  demand — Decree 933 

§    725.  Recording  and  registering  decree  in  probate  office 934 


xxii  EQUITY  PRACTICE 

ALABAMA  (Stat.— cont.) 

§    726.  Decree  when  defendant  fails  to  answer,  or  disclaims  interest — 

Costs    934 

§    727.  When  state  may  maintain  suit 934 

§    728.  Powers — Notice — Jury  trial 935 

Rules  of  Court 

§    729.  Court   always   open    for   certain   purposes — Notice   of   hearing 

appeals   from   register 935 

§    730.  Powers    of    register    in    vacation — Appeal    to    chancellm-,    how 

certified    936 

§    731.  Eegisler  keeps  book — Solicitor  draws  up  application,   which  is 

transcribed  with  indorsement 936 

§    732.  When  register  grants   orders 936 

§    733.  Notice,  when  necessary 937 

§    734.  The  register  being  interested,  special  register  acts 937 

§    735.  Eules  of  English  chancery 937 

§    736.  Stating  part,  divided  and  numbered . 937 

§    737.  Interrogatories,  divided  and  numbered 937 

§    738.  Containing  blanks,   defective 938 

§    739.  Complainant  prescribes  matters  to  be  answered  by  note 938 

§    740.  Foot-note  specifying  matters  to  be  answered,  part  of  bill 938 

§    741.  Form  of  interrogating  part 938 

§    742.  Bill,  etc.,  how  signed 938 

§    743.  Bills,  how  sworn  to 939 

§    744.  Exhibits  part  of  bill,  and  admissions  of  them  dispenses  with 

proof    939 

§    745.  Prayer,  requisites  of 939 

§    746.  Non-resident  or  insolvent  parties  may  be  dispensed  with 939 

§    747.  When  parties  are  numerous,  court  may  proceed,  having  before  it 

parties  to  represent  adversQ  interests 939 

§    748.  Infants,    how    served 940 

§    749.  Corporations — Service  on 940 

§    750.  Service  of   non-residents 940 

§    751.  Appointment  of  guardian  ad  litem,  and  afiidavit  of  infancy.  . .  .   941 

§    752.  Attachment  against  defendant  failing  to   answer 942 

§    753.  Sequestration  against  defendant  evading  attachment 942 

§    754.  Alias  and  pluries  process  without  order 942 

§    755.  Bill  dismissed  for  neglect  to  bring  in  defendant 942 

§    756.  Dismissal,  when  equivalent  to  dismissal  on  merits 942 

§    757.  Certificate  requisite  to  decree  pro  confesso 943 

§    758.  Demurrer  being  overruled,  answer  filed,  or  decree  pro  confesso, 

or  attachment    943 

§    759.  Commission  to  take  non-resident's  answer 943 

§    760.  Injunction  dissolved  on  answer  ouly  when  sworn  to 944 

§    761.  Defendant  failing  to  answer  not  in  contempt,  until  his  exceptions 

are  decided  944 

§    762.  If  oath  waived,  no  exception  to  answer  for  insufficiency 944 

§    763.  Proceedings  on  exceptions  to  bill  or  answer 944 

§    764.  Proceedings,  if  exceptions  for  insuflScieney  to  answer  allowed..   944 

§    765.  If  exceptions  for  scandal  or  impertinence  allowed 945 

§    766.  Exception? — Time   of   hearing 945 

§    767.  Amendments — Mode  of  making 945 

§    768.  Amendments  to  bill  and  answer — Notice 945 

§    769.  Amendments  after  demurrer  and  argument  thereof 946 

§    770.  After  answer,  order  to  amend  bill  generally  not  allowed 946 

§    771.  Amendments  of  bills  considered  as  introduced  from  allowance  946 

§    772.  Notice  of  the  allowance  of  amendments,  how  given 946 

§    773.  Supplemental  matter  introduced  by  way  of  amendment 947 

§    774.  Decree  pro  confesso  not  set   aside  by  amendment,  and  effect 

of  decree  pro  confesso  on  amendment .•  •  •  •   ^^'^ 

§    775.  Submission  of  cause;  time  of  filing  amendment  when  dismissed 

in  vacation   947 


CONTENTS  OF  VOLUME  II  xxiii 

ALABAMA  (Eules — eont.) 

§    776.  Decree  pro  coufesso  after  thirty  days 947 

§    777.  Testimony  taken  after  cause  is  at  issue 947 

§    778.  Interrogatories  filed  and  copies  served 948 

§    779.  Party  desiring  to  be  present  gives  notice 948 

§    780.  Ee-examination     948 

§    781.  —  By  parties   filing  cross-interrogatories 948 

§    782.  Examinations  de  bene  esse 948 

§    783.  —  Further   examination    949 

§    784.  Testimony   in   interpleader 949 

§    785.  Mode  of  impeaching  testimony 949 

§  786.  Notice     accompanies     interrogatories — Objection     to     commis- 
sioner        950 

§    787.  Chancellors  appoint  examiners — Qualification  and  duty 950 

§    788.  Names  and  residences  of  witnesses  given 950 

§  789.  No    interrogatories   or   notice    to    party    in    contempt — Waiver 

of  notice    951 

§  790.  Inclosure  and  direction  of  depositions — Publication — After  pub- 
lication testimony  not  taken  without  consent  or  order 951 

§    791.  Eegister's  duty  on  publication  of  testimony 951 

§    792.  Proof  of  exhibits  and  documents '. 951 

§  793.  Eules  for  taking  the  oral  examination  of  witnesses  in  chancery 

cases    952 

§    794.  Docket — What  it  must  contain — Filed  with  papers 954 

§    795.  Caption  of  minutes — Form  of 954 

§    796.  Special  or  extra  terms — Proceedings  in  reference  to 955 

§  797.  Hearing — Failure  of  parties  to  appear — Setting  aside  default.  .   955 

§    798.  Continuance    955 

§  799.  No  continuance  without  disposition  of  the  question  of  equity.  .  .   955 

§    800.  Demurrers   and  pleas — When   filed 956 

§    801.  Exceptions    and    demurrer — When    heard 956 

§  802.  Pleas,   demurrers,   or   motions   to   dismiss   for   ^\ant   of   equity, 

may  be  heard  in  vacation 956 

§    804.  Proceedings  'on  hearing 957 

§    805.  j\Iemorandum  of  testimony  entered  and  copy  filed 957 

§    806.  Submission  at  call  for  motions 957 

§    807.  Decrees  in  vacation — Proceedings  and  process  on 957 

§    808.  Consents  to  orders  and  decrees  entered  in  vacation 958 

§    809.  Decrees  in  term  time — Chancellor's  reasons,  transcript 958 

§    810.  Eehearing    958 

§    8]  1.  Orders,  and  opening  of  them 959 

§    812.  Questioning  final  decree  after  adjournment 959 

§    813.  Transcript    on    appeal 959 

§    814.  Appeal — In  whose  name  taken 959 

§  815.  Appeal  bond  for  restoration   of  injunction — Ne  exeat   or  -OTit 

of  seizure   959 

§    816.  Sessions   of   register,    place   of 960 

§    817.  Testimony,  how  taken 960 

§    818.  Accounts  before  register,  form  of 960 

§    819.  Accounting   before    register 961 

§    820.  Notice   of    taking    account 961 

§    821.  Objections  to   report,   exceptions  heard  by   chancellor 961 

§    822.  Exceptions,  how  taken 961 

§    823.  Eeport,   confirmation   of — Exceptions   to 962 

§    824.  Motions    every    morning 962 

§    825.  Motions  to  dissolve   injunctions — Hearing  of 962 

§    826.  Notice   of   motions 963 

§  827.  Where  exceptions  to  answer  overruled,  chancellor  may  dissolve 

injunction    963 

§  828.  Defendant  not  brought  in  before  second  term,  injunction  dis- 
solved      ' 963 

§    829.  Applications  to  reinstate  injunctions — Appeals 963 

§    831.  Bevivor  upon  death,  marriage,  or  expiration  of  office 964 

§  832.  Supplemental  bills  and  bills  of  revivor — Eecitals  and  contents  of  965 


xxiv  EQUITY  PRACTICE 

ALABAMA  (EULES— cont.) 

§    833.  Proceedings  ami  practice  in  relation  to 965 

S    S3-4.  Publication,  order  of 966 

S    835.  Costs  in  cases  of  abatement 966 

§    836.  Allegation  as  to  subsequent  incumbrancers — Decree  as  to  sale 

and   proceeds    967 

§    837.  Proceedings  when  subsequent  incumbrancers  discovered  before 

confirmation  of  sale 967 

§    838.  Costs,  decree  as  to 967 

§    839.  Proceedings,  if  execution  for  costs  returned  "no  property"....  967 

§    840.  One  receiver  for  same  property,  though  more  than  one  suit.  .  .  .  968 

§    8-il.  Order,  where  there  is  one  receiver  and  two  or  more  suits 968 

§    842.  Suit  at  law  and  in  chancery  for  same  claim 968 

§    843.  Sales  of  personal  property 969 

§    844.  Xecessarv  papers  laid  before  chancellor  on  motions  and  appeals  969 

§    845.  Notice,   length   of 969 

§    846.  Notice,  upon  whom  served 969 

§    847.  Computation  of  time 970 


CHAPTEE  XXXI 
DELAWAEE 

Statutes 

§    848.  General  powers  of  Chancellor 971 

§    849.  Powers  of  Chancellor  in  vacation 971 

§    850.  Powers  at  chambers 972 

§    851.  Process    972 

§    852.  Subpoenas — When  and  where  returnable 972 

§    853.    Appearance  dav   973 

§    854.  Filing   of   answer 973 

§    855.  Eules  of  pleading — Dismissal — Decrees  pro  confesso 973 

§    856.  Sequestration    974 

§    857.  Order  for  appearance — Notice — Pro  confesso  decree — Sequestra- 
tion      974 

§    858.  Compulsory  appearance 975 

§    859.  Service  on  absent  persons,  heirs,  etc 975 

§    860.  —  Decree  to  stand  absolute  in  absence  of  appearance 975 

§    861.  —  Limitation  of  right  to  rehearing 976 

§    862.  — Decree  to  stand  absolute  unless  reheard  in  due  time 976 

§    863.  —  Proof  of  absence  and  previous  residence 976 

§    864.  Sale  of  land  to  enforce  decrees 977 

§    865.  Power  of  Chancellor  to  make  rules 977 

§    866.  Beference   by    consent 978 

§    867.  Eefusal  or  neglect  of  referee  to  act — Fine 978 

§    868.  Oath  of  referee 978 

§    869.  Award  or  report  of  referee — Eeview  on  appeal 978 

§    870.  Decree  on  award 978 

§    871.  Authority    to    appoint 979 

§    872.  Eules — Compensation    979 

§    873.  Eeceivers  of  corporations  vested  with  title  to  property 979 

§    874.  Eeceivers  to  file  certified  copy  of  their  appointment  and  quali- 
fications within  twenty  days 980 

§    875.  Eeceivers  appointed  pendente  lite  excepted 980 

§    876.  Original  papers  mav  be  sent  upon  appeal 980 

§    877.  Disqualification   of  "Qiancellor ,  9S0 

§    878.  Eecording— Evidence    980 

Eules  of  Coukt 

§    897.  Eequisites    to    admission 981 

§    898.  Oath  or  affirmation 981 


CONTENTS  OF  VOLUME  II  xxv 

DELAWARE  (Rules — eont.) 

§    899.  Not  to  be  taken  as  security 981 

§    900.  Solicitors  admitted  in  other  states — Admission  ad  litem 981 

§    901.  Powers  at  chambers  or  in  vacation 982 

§    902.  Application  at  chambers — How  made 982 

§    903.  Orders  at  chambers — Service  of  copy 982 

§    904.  Issued  only  on  bill  or  petition 983 

§    905.  When  returnable   983 

§    906.  Service    983 

§    907.  —  On  infants   983 

§    908.  —  On   corporations    983 

§    909.  Absent  or  concealed  defendants — Order  for  appearance 983 

§    910.  Attachment  or  failure  to  appear 984 

§    911.  — On  non-appearance  of  married  woman 984 

§    912.  Appearance  of  infant — How  made 984 

§    913.  Appointment  of  guardian  ad  litem 984 

§    914.  Decree  pro  confesso  on  non-appearance  of  corporation 98.5 

§    915.  Necessity  for  appearance  of  party  against  whom  no  relief  is 

sought — Costs     985 

§    916.  How  addressed — Signature  of  solicitor — Injunction 986 

§    917.  Averments — Numbering     paragraphs — Prayer — Non-demurrable 

omissions    986 

§    918.  Interrogatories     986 

§    919.  —  When  may  be  omitted 987 

§    920.  Cross  bills  for  discovery  or  production  of  documents  unneces- 
sary      987 

§    921.  Rule  to  plead — Amendment — Extension  of  rule 988 

§    922.  Answer — How  entitled — Paragraphing — Response  to  interroga- 
tories— Exceptions  to  bill — Oath 988 

§    923.  Notice  on  filing — Service  of  copy  of  answer 988 

§    924.  Exceptions — Filing — Notice    on    allowance — Further   answer...  989 

§    925.  Proceedings  in  absence  or  on  disallowance  of  exceptions 989 

§    926.  Motion    for    decree    notwithstanding    answer 989 

§    927.  Demurrer — Requisites — Service — Time   for   hearing 991 

§    928.  Plea — Requisites — Service — Taken  as  true  in  absence  of  replica- 
tion       991 

§    929.  When  decree  taken  pro  confesso — Procedure 991 

§    930.  Rule  to  answer  to  defendant  not  found  on  attachment  to  appear  992 

§    931.  Non-resident  or  absconding   defendants 992 

§    932.  Service  of  copy  of  decree  before  process  in  execution  in  certain 

cases 992 

§    933.  Commissions — Issuance     992 

§    934.  Exceptions  to  interrogatories — Filing 993 

§    935.  Depositions — Taking    and    return 993 

§    936.  Return   of   commission — Publication — Exceptions 993 

§    937.  Order  for  taking  testimony  on  oral  examination — Notice 994 

§    938.  Oral  examination — How  made 994 

§    939.  —  Objection  to  testimony 995 

§    940.  —  Impeaching  evidence — Adjournments    995 

§    941.  —  Return  and  filing — Exceptions 996 

§    942.  Special  order  for  examination  of  witness — Taking  in  open  court  996 

§    943.  Examination   of   parties 997 

§    944.  Examination   de  bene  esse 997 

§    945.  Neglect  or  refusal  to  appear  or  testify — Attachment 997 

§    946.  Proof  of  998 

§    947.  Filing  and  service  of  list  of  exhibits 998 

§    948.  Devolution  of  interest  or  liability  by  operation  of  law 998 

§    949.  — Executors  or  administrators — How  made  parties 999 

§    950.  Insane  parties — Trustee  or  guardian  ad  litem  as  party 999 

§    951.  When  cause   deemed  ready  for  hearing — When  commission  to 

take  testimony  not  to  issue 999 

§    952.  Printed  list  of  causes — Delivery  to  solicitors 1000 

§    953.  Enrolling  and  signing  on  record 1000 

§    954.  Interlocutorv    orders — Recitals — Record 1000 


XXVI  EQUITY  PRACTICE 

DELAWAEE  (Eules— cont.) 

§    955.  When  may  be  i)rayed  and  entered — Persons  under  disability...  1000 

§    956.  Stay  of  proceedings — Security 1001 

§    957.  Sending  up  original  papers  in  cause 1001 

§    95S.  Preliminary  injunction — Special  prayer  necessary 1001 

§    959.  Applications — Motions  to  dissolve — When  may  be  made 1001 

§    960.  Answer  under  oath  to  dissolve  preliminary  injunction 1001 

§    961.  :\Iotions  to  dissolve — Testimony 1002 

§    962.  Order  for  injunction — Expiration 1002 

§    981.  Infancy  of  party  not  ground  for  demurrer  or  delay 1003 

§    982.  Security  for  costs  by  complainant 1003 

§    983.  Oaths  or  affirmations — How  administered 1003 

§    984.  Order  or  statute  for  deposit  in  court — How  complied  with 1003 

§    985.  Eules  and  orders — Necessity  for  service 1003 

§    986.  Notices — Eequisites— Sei-viee 1003 

§    987.  Stipulations— Eequisites     1004 

§    988.  Papers  on  file  not  to  be  taken  from  register's  office 1004 

§    989.  Pleadings  and  paiici  s  filed  to  be  engrossed — Erasures,  etc 1004 

§    990.  Provisions  as  to  answers  under  oath 1004 

§    991.  Sales    on    partition — Judgment    bond — Payment    of    purchase 

money  1004 

§    992.  Order  to  show  cause 1005 

§    993.  Eeceivers  pendente  lite 1005 

§    994.  Bond    1006 

§    995.  Eesidence  of  receiver 1007 

§    996.  Failure  to  give  bond 1007 

§    997.  Filing  inventory — List  of  debtors  and  creditors — Stockholders.  1007 

§    998.  Eeport 1007 

§    999.  Notice  to  creditors 1007 

§  1000.  Claims — Filing  and  requisites 1008 

§  1001.  —  Exceptions     1008 

§  1002.  Accounts— Eequisites    1008 

§  1003.  Compensation  for  services  and  expenses 1009 

§  1004.  —  Notice  of  filing  of  account .  .  .  ; 1009 

§  1005.  —  Exceptions  to  account 1009 

§  1006.  — Allowance — Order  of  distribution— Eeport 1009 

§  1007.  Discharge   of    receiver 1010 

§  1008.  Hearing  on  exceptions  to  claims  and  accounts 1010 

§  1009.  Failure  to  make  or  file  accounts  or  reports 1010 

§  1010.  Deposit  of  moneys ' 1010 

§  1011.  Withdrawal    of  original  instruments  filed  by  claimants IfllO 

§  1012.  Notice  of  sales ". 101] 


CHAPTEE  XXXII 
FLOEIDA 

Statutes 

§  1013.  Action  to  be  as  effective  as  in  term 1012 

§  1014.  Provisions  at  law  to  govern. 1012 

§  1015.  Locality   in  applications  for  receivers  when  property  in  more 

than  one  judicial  circuit 1012 

§  1016.  Where  suits  may  be  begun 1013 

§  1017.  Suits    against    defendants    residing    in    different    counties    or 

district?   T 1013 

§  1018.  Suits  against  corporations 1013 

§  1019.  When  to  issue 1013 

§  1020.  When  returnable   1014 

§  1021.  Form  of 1014 

§  1022.  Personal    service    1014 

§  1023.  Constructive   service 1015 


CONTENTS  OF  VOLUME  II  xxvii 

FLOEIDA  (Stat.— cont.) 

§  1024.  Amendment  of 1016 

§  1025.  In  cases  of  foreclosure 1016 

§  1026.  Insufficient  answers  and   proceedings   thereon Iul6 

§  1027.  May  be  pleaded  together,  and  with  answer 1017 

§  1028.  May  be  incorporated   in   the   answer 1017 

§  1029.  Complainant's  dealing  with 1017 

§  1030.  Effect  of  overruling 1017 

§  1031.  Replications— When  to  be  filed 1017 

§  1032.  Special  replications  to  answer  not  allowed .  1018 

§  1033.  Failure  to  reply  to,  or  set  down  pleas  or  demurrer 1018 

§  1034.  What  practice  to   prevail 1018 

§  1035.  Service  of  notices 1018 

§  1036.  Taken  before  issue 1018 

§  1037.  Taken  after  issue 1019 

§  1038.  Appointment  of   1019 

§  1039.  Oath  of   1019 

§  1040.  General  duties  and  powers  of 1019 

§  1041.  Process  of 1020 

§  1042.  Bond  of 1020 

§  1043.  Presentation  of  matter  to 1020 

§  1044.  Time  and  place  of  hearing 1020 

§  1045.  Speeding  the  proceedings 1021 

§  1046.  Regulation  of  prof-eedings  before 1021 

§  1047.  Evidence  permissible  before 1021 

§  1048.  Evidence  before,  to  be  in  writing 1021 

§  1049.  Fees   of   witnesses   before 1021 

§  1050.  Report  of  masters  in  chancery 1022 

§  1051.  Special  masters  in  chancery 1022 

§  1052.  When  may  be  entered 1022 

§  1053.  Prerequisites  to  enter  upon  constructive  service 1023 

§  1054.  Setting  aside  final  decree  upon  decree  pro  confesso 1023 

§  1055.  Proceedings  in  lieu  of  decree  pro  confesso 1023 

§  1056.  Signing  and  recording  of 1024 

§  1057.  Execution   of  money   decrees 1024 

§  1058.  Effect  of  a  decree  for  conveyance 1 024 

§  1059.  Form  and  contents  of 1024 

§  1060.  Presentation  of,  as  a  supersedeas 1025 

§  1061.  Granting  of  rehearing  as  a  supersedeas 1025 

§  1062.  Matters  of  right 1025 

§  1063.  Limitation    of    time 1025 

§  1064.  From  interlocutory  decrees 1025 

§  1065.  Appeal  as  a  supersedeas 1026 

§  1066.  Supersedeas  on  appeals  from  decrees,  etc.,  relating  to  adminis- 
trators     1026 

§  1067.  Notice  of  entry  of  appeals 1027 

§  1068.  Application  to  appeals  in  chancery,  of  certain  provisions  relat- 
ing to  writs  of  error 1027 

§  1069.  Injunction  to  issue  only  after  bill  filed 1027 

§  1070.  Injunctions  to  stay  proceedings  at  law 1028 

§  1071.  In'iunction  without  bond 1028 

§  1072.  Evidence  upon  application  for,  or  to  dissolve  injunctions 1028 

§  1073.  Motion  to  dissolve  injunction 1029 

§  1074.  Against  levy  of  execution  issued  against  another  than  the  com- 
plainant ." 1029 

§  1075.  Asrainst  destruction  of  timber 1029 

§  1076.  Injunction  against  removal  of  mortgaged  personal  property.  .  .1029 

§  1077.  When  to  issue 1030 

§  1078.  Chancellor  to  fix  penalty  of  bond 1030 

§  1079.  Absence  of  defendant  permitted 1030 

§  1080.  Surrender  of  defendant  by  bail 1030 

§  1081.  Proceedings    prescribed 1031 

§  1082.  In  counties  where  rendered 1032 

§  1083.  In   other  counties 1032 


xxviii  EQUITY  PRACTICE 

FLOEIDA  (Stat.— cont.) 

S  1084.  Process   by   publication 1032 

§  1085.  Order  and  publication 1033 

§  1086.  Decree  pro  confesso 1033 

§  1087.  Eehearing    1034 

§  1088.  Service  by  process  on  non-residents   in   suits   for  specific  per- 
formance of  contracts  to  convey 1034 

§  1089.  To  be  by  bill  in  chancery 1035 

§  1090.  Locality   of   action 1035 

§  1091.  Parties  to  the  suit 1035 

§  1092.  Form  and  contents  of  the  bill 1035 

§  1093.  Decree   of    partition 1036 

§  1094.  Commissioners  to  make  partition 1036 

§  1095.  Sale  of  non-divisible  real  estate 1037 

§  1096.  Costs  of  partition  and  taxes 1038 

§  1097.  Provisions  of  law  applicable   to 1038 

§  1098.  Quieting  title,  removing  clouds 1038 

§  1099.  Creditors'    bills 1039 

EuLEs  OF  Court 

§  1100.  Docket — Call — Dismissal  and  reinstatement  of  causes 1039 

§  1101.  Proceedings  in  vacation — Clerk's  office 1040 

§  1102.  Order  book — Entries — Notice  of  filing  of  papers 1040 

§  1103.  Motions  and  applications — Powers  of  clerk 1041 

§  1104.  Motions — Time   of   making — Notice 1041 

§  1105.  Mesne    process 1041 

§  1106.  Final  process— Enforcement  of   decree 1042 

§  1107.  Writ  of   assistance 1042 

§  1108.  Enforcement  of  order  in  favor  of  third  person 1042 

§  1109.  Issuance  of  process — Time 1043 

§  1109a.  Subpoena — Issue — When   returnable 1043 

§  1110.  Service  of  process — On  whom  made 1043 

§  1111.  Alias    process 1043 

§  1112.  Service  of  process — By  whom 1043 

§  1113.  Appearance— Time    for 1044 

§  1114.  Entry  of  appearance 1044 

§  1115.  Introduction    1044 

§  1116.  Averments  which  may  be  omitted 1044 

§  1117.  Scandal    and    impertinence 1045 

§  1118.  Expunging  scandalous  and  impertinent  matter 1045 

§  1119.  Special  interrogatories   1045 

§  1120.  Prayer  for  discovery 1045 

§  1121.  Specifying    interrogatories 1046 

§  1122.  Note  specifying  interrogatories  as  part  of  bill 1046 

§  1123.  General  and  special  relief 1046 

§  1 124.  Prayer    for    process 1047 

§  1125.  Signature    1047 

§  1126.  Answer  to  cross  bill 1047 

§  1127.  Omitting  parties  defendant — When  allowed 1047 

§  1128.  Trustees   as    parties 1048 

§  1129.  Heirs  as  parties 1048 

§  1130.  Joinder   of   parties 1048 

§  1131.  Objection  for  want  of  parties 1048 

§  1132.  Saving  rights  of  absent  parties 1049 

§  1133.  When    answer    optional 1049 

§  1134.  Appointment— Suits  by 1049 

§  1135.  Eevivor  against  representatives 1050 

§  1136.  Motion  to  revive  by  or  against  personal  representative 1050 

§  1137.  Supplemental    bills 1050 

§  1138.  Eepetition  in  supplemental  bill 1051 

§  1139.  Amendments — Costs — Service  of  copies 1051 

§  1140.  Amendment  after  answer,  etc 1051 

§  1141.  Failure   to  file   amendments 1052 


CONTENTS  OF  VOLUME  II  xxix 

FLOEIDA  (EULES— cont.) 

§  1142.  Answer— Time  for  filing — Effect  of  failure  to  file  in  time 1052 

§  1143.  Decree  pro  confef-so 1053 

§  1144.  Notice  of  motion  for  injunction 1053 

§  1145.  Eeceiver — Notice  of  application  for — Inventory  and  account.  . .  .1053 

§  1146.  Demurrer — Certificate  and  affidavit  to  support ]054 

§  1147.  Demurrer  or  plea  to  part  of  bill 1054 

§  1148.  Setting  down  demurrer  or  plea  for  argument — Decision  on  issue 

of  fact 1055 

§  1149.  Overruling  demurrer  plea — Effect 1055 

§  1150.  Costs  on  demurrer — Amendments 1055 

§  1151.  Demurrer  not  coextensive  with  bill 1055 

§  1152.  Answer  extending  to  matter  covered  by  demurrer 1056 

§  1153.  Failure  of  plaintiff  to  reply  to  plea  or  set  down  for  argument.  .1056 

§  ]  154.  Costs  where  more  than  one  answer  filed 1056 

§  1155.  Answer — Contents    1056 

§  1156.  Eefusal  to   answer   interrogatories 1057 

§  1157.  Supplemental   answer 1057 

§  1]  58.  Verification  of  answer 1057 

§  1159.  Matters  as  to  which  allowed 1057 

§  ]  160.  Time  for  filing 1058 

§  1161.  Hearing  on  exceptions 1058 

§  1162,  Allowance  of  exceptions — Compelling  better  answer 1058 

§  1163.  Costs  upon  allowance  or  disallowance 1059 

§  1164.  Amendments   after   answer 1059 

§  1165.  Eeplication— Filing— Effect— Failure  to  file 1059 

§  1166.  Common  law  rules'. 1060 

§  1167.  Commission — Notice — Oral   interrogatories 1060 

§  1168.  Taking  deposition  after  cause  at  issue 1060 

§1169.  Depositions  after  cause  at  issue — Time  allowed — Publication.  .1060 

§  1170.  Statutory  provision 1061 

§  1171.  Form    1061 

§  1172.  Appointment — Compensation     1061 

§  1173.  Decree  for  account  of  personal  estate 1062 

§  1174.  Presenting  referred  matter  to  master 1062 

§  1175.  Eeference — Time    and     place    for    hearing — Notice — Adjourn- 
ments    1062 

§  1176.  Proceedings — Examination  of  parties — Production  of  documents 

— Examination  of  witnesses   1063 

§  1177.  Taking    testimony — Subpoena — Compelling    attendance — Exam- 
ination  viva   voce ■ 1063 

§  1178.  .Recounts — Examination  of  parties 1064 

§  1179.  Use  of  affidavits,  depositions  and  documents  before  master.  .  .  .1064 

§  1180.  Examination    of    creditors 1064 

§  1181.  Eeport— Matters    excluded 1064 

§  1182.  Filing    report — Exceptions — Costs 1064 

§  1183.  Time  for  setting  for  hearing 1065 

§  1184.  Manner   of  setting   down   for  hearing — Postponement — Failure 

to    attend 1065 

§  1185.  Signing  and  recording — Correcting  errors 1066 

§  1186.  Eecitals  in  decree 1066 

§  1187.  Deficiency  decree  on  foreclosure — Execution 1066 

§  1188.  Contents— Signature — Verification — Filing 1066 

§  1190.  Eules — Power  of  circuit  courts  to  make  and  amend 1067 

§  1191.  Affirmation  in  lieu  of  oath 1067 

§  1192.  Transcripts    1067 

§  1193.  Copying  papers  into  record — Duty  of  clerk 1067 

§  1194.  Appeal— Citation— Issue,  service  and  return 1067 

§  1195.  Appeal — Assignment  of  errors — Cross  assignments — Making  up 

transcript    1068 

§  1196.  Evidence  in  record  on  appeal 1069 


XXX  EQUITY  PEACTICE 

CHAPTER  XXXIII 
ILLINOIS 

Statutes 

§  1197.  Procedure  controlled  by  this  act  and  general  chancery  usage.  .  .  .1071 

§  1198.  Rules    1071 

§  1199.  Venue     1071 

§  1200.  Mode  of  beginning  suit 1072 

§  1201.  Suits  by  infants — By  conservators 1072 

§  1202.  Guardian   ad   litem 1072 

§  1203.  Unknown    parties— Affidavit— Notice 1072 

§  1204.  Summons     1073 

§  1205.  —  When    returnable    1073 

§  1206.  Alias— Pluries    1073 

§  1207.  Service   of  summons — Continuance 1073 

§1208.  Notice  by  publication — Affidavit— Mailing— Certificate 1074 

§  1209.  Period  of  publication— Default 1074 

§  1210.  Service  on  non-resident  by  copy  of  bill — Proof 1075 

§  1211.  Case  continued  for  service 1075 

§  1212.  Pleading— Default— Bill  confessed   1075 

§  1213.  Decree,  when  vacated  at  next  term 1076 

§  1214.  Evidence  on  bill  confassed — Final  decree 1076 

§  1215.  Defendant  not  served   may  have   decree   vacated    within   three 

years 1076 

§  1216.  Waiver   of   oath— Answer 1077 

§  1217.  Answer  under  oath 1077 

§  1218.  Answer  by  private  corporation 1077 

§  1219.  Full  answer  required 1077 

§  1220.  Insufficient    answer — Contempt    1078 

§  1221.  Discovery  in  answer  not  conclusive 1078 

§  1222.  Further  "interrogatories    1078 

§  1223.  Exceptions  to  answers 1078 

§  1224.  Replication    1078 

§  1225.  Hearing     1078 

§  1226.  Cross-bill     1079 

§  1227.  — Recitals  unnecessary — Process  for  new  parties 1079 

§  1228.  —  Pleading   thereto    1079 

§  1229.  —  Failure  to   answer 1079 

§  1230.  — New  parties   on 1079 

§  1231.  —  When  to  be  answered 1079 

§  1232.  No  dismissal  without  consent  after  cross-bill  filed *.  . .  1080 

§  1233.  Time  to  plead — Amendments — Continuances  thereon 1080 

§  1234.  Supplying   lost   files 1080 

§  1235.  Reference  to  master 1080 

§1236.  Jury  trial  discretionary — Former  chancery  practice  retained.  .  1080 

§  1237.  Failure  to  appear  or  answer — Contempt 1081 

§  1238.  Enforcement  of   decree 1081 

§  1239.  Unknown  parties   1081 

§  1240.  Lien  of  money  decree 1081 

§  1241.  Lien  of  other  decrees 1081 

§  1242.  Execution  of  deeds — Recording 1082 

§  1243.  Execution  of  process  to  enforce  decree — Penalties 1082 

§  1244.  Terms   of  sale 1083 

§  1245.  Creditor 's  bill    1083 

§  1246.  Bills  to  quiet  title 1083 

§  1247.  Exemptions  prei^erved  as  at  law 1084 

§  1248.  Amendments  before  judgment 1084 

§  1249.  Amendments  after  judgment 1084 

§  1250.  Formal  error  no  ground  for  reversal 1084 

§  1251.  Returns  amendable   1085 

§  1252.  Venire — Amendment    1085 


CONTENTS  OF  VOLUME  II  xxxi 

ILLINOIS  (Stat.— cont.) 

§  1253.  Omissions,  variances,  defects:  not  ground  for  arrest  or  reversaL1085 

§  1254.  What  defects  amended — By  what  court 1086 

§  1255.  No  amendment  without  order  of  court 1086 

§  1256.  Proceedings  governed  by  this  act 1087 

§  1257.  Writs  of  error,  amendable 1087 

§  1258.  Oral  examination — Preserving  evidence 1087 

§  1259.  Depositions  of  resident  witnesses,  in  chancery 1087 

§  1260.  Of  witness  non-resident  or  more  than  one  hundred  miles  distant 

—Soldier— Sailor— Dedimus    1088 

§  1261.  Notice  by  mailing  or  publication 1089 

§  1262.'  Oral  examination  of  non-resident  witness 1089 

§  1263.  Further  examination  of  witness 1090 

§  1264.  Witnesses  before  commissioners — Compelling  attendance — Com- 
pelling answers   1090 

§  1265.  Fees  of  witnesses  before  commissioner 1091 

§  1266.  Petition— Aflfidavit-Dedinnis     1091 

§  1267.  On  chancery  docket — Designation  of  parties 1092 

§  1268.  Several  commissions  may  issue 1092 

§  1269.  Notice    1092 

§  1270.  Notice  to  parties  who  cannot  be  personally  served 1093 

§  1271.  Court  may  order   notice 1093 

§  1272.  Testimony,  how  taken,  certified,  returned  and  recorded 1093 

§  1273.  Deposition  or  copy  as  evidence — Limitation 1094 

§  1274.  Who  may  appoint — Residence 1094 

§  1275.  Term    of    office— Removal 1094 

§  1276.  Court  to  fill  vacancy 1094 

§  1277.  Bond— Oath    " 1094 

§  1278.  Special  master   1095 

§  1279.  Powers  of  masters 1095 

§  1280.  —  May  grant  writs  of  certiorari 1095 

§  1281.  Power  of  successor 1095 

§  128S.  Fees    1095 

§  1283.  To  report  money  not  paid  out 1096 

§  1284.  What  report  shall  contain — Receipts 1096 

§  1285.  Duty  of  court  in  relation  to  money 1097 

§  1286.  Removal  from  office 1097 

§  1287.  When  writ  may  issue 1097 

§  1288.  In  favor  of  co-obligors  or  co-debtors 1098 

§  1289.  What  courts  may  issue 1098 

§  1290.  Master  in  chancery  may  order 1098 

§  1291.  Bill  or  petition  necessary — Affidavit — Bond — Suit  on 1098 

§  1292.  Vacation,  clerk  directed  to  issue 1099 

§  1293.  Returnable    where 1099 

§  1294.  Form  of  writ — Bond  by  defendant — Temporary  departure  no 

breach    1099 

§  1295.  Surrender  of  defendant  by  surety 1100 

§  1296.  Proceedings  on  return  of  writ 1100 

§  1297.  Quashing  or  setting  aside  Avrit 11 00 

§  1298.  Oral    submission    of    controversy — Agreement — Hearing — .Judg- 
ment— No   appeal    1100 

§  1299.  In  chancery — Dismissal  of  bill — Other  eases  discretionary 1102 

§  1300.  Transfer  of  suit  where  party  misconceives  remedy 1102 

i  1301.  Chancery — Death  of  part  where  suit  does  not  survive 1102 

§  1302.  Who   may   grant 1103 

§  1303.  —  When  master  may  grant 1103 

§  1304.  Notice   of   application , 1103 

§  1305.  To  stay  suit  or  judgment — Venue — Where  served 1103 

§  1306.  Writ    releases    errors 1103 

§  1307.  Justice 's  judgment — Not  enjoined,  when 1104 

§  1308.  Part    of    judgment    enjoined 1104 

§1309.  Where  judgment  enjoined,  bond — Damages  on   dissolution.  ...  1104 
§  1310.  In  other  cases,  what  bond 1104 


xxxii  EQUITY  PRACTICE 

ILLINOIS  (Stat.— cont.) 

§  1311.  In  other  cases,  who  may  take  bond 1104 

§  1312.  —  Where  filed    1105 

§  1313.  Dissolution — Suggestion  of  damages — Assessment — Execution — 

Suit  on  bond ' 1105 

§  1314.  Violation  of  injunction — Proceedings  in  vacation 1105 

§  1315.  Dissolution  or  modification  in  vacation 1105 

§  1316.  Motion   to   dissolve 110(5 

§  1317.  —  Evidence    1100 

§  1318.  —  Affidavits     1106 

§  1319.  —  Continuance  for  evidence  to  support  bill 1106 

§  1320.  Motion  to  dissolve — Testimony  to  be  by  deposition — Exception.  1106 

§  1321.  Depositions  competent  at  final  hearing 1106 

§  1322.  Appeal,   when    supersedeas 1107 

§  1323.  —  Further   bonds    1107 

§  1324.  Injunction  on  Sunday 1107 

§  1325.  Ai)pointnient  of  receiver — Bond  by  party  applying — When  re- 
ceiver may  be  appointed  without  bond 1108 

§  1326.  Bond  as  substitute  for  appointment  of  receiver — Removal  of  re- 
ceiver upon  giving  bond 1108 

§  1327.  Suits  against  receivers  without  leave  of  court 1108 

§  1328.  Judgment  in  vacation — Eeviewable  at  next  term 1109 

§  1329.  Judgment   in    vacation — Stipulation — Lien 1109 

S  1330.  Powers   in    vacation 1109 

S  1331.  Notice    1110 

§  1331a.  Between  co-tenants — By  bill  or  petition 1110 

§  1332.  Venue     1110 

§  1333.  Infants— Lunatics— Suits   by    1110 

S  1334.  Such  persons  as  defendants 1110 

§  1335.  Form  and  contents  of  petition 1110 

§  1336.  All  persons  interested  should  be  made  parties 1111 

§  1337.  Unknown    owners — Contingent    interests 1111 

§  1338.  Unknown    owners— How    described 1111 

§  1339.  Service   as  in   chancery 1111 

§  1340.  Notice   to   unknown    owners 1111 

§  1341.  Notice  by  publication   and   mail 1112 

§  1342.  Service  by  copy  on  non-residents 1112 

§  1343.  Answer  under  'oath 1112 

§  1344.  Interpleader     1112 

§  1345.  Judgment  must  declare  rights  of  parties 1112 

§  1346.  Appointment   of  commissioners 1112 

§  1347.  Oath    of    commissioners 1113 

§  1348.  Diity  of  commissioners — Mode  of  partition 1113 

§  1349.  Report    of    commissioners 1113 

§  1350.  Control  and  removal  of  commissioners 1113 

§  1351.  When  land  in  several  counties 1114 

§  1352.  Dower — Homestead  may  be  set  off 1114 

§  1353.  Shares  together  or  in  severalty 1114 

§  1354.  Mortgages — Attachments — Liens — How    affected 1114 

§  1355.  Person  evicted  by  paramount  title  may  have  partition  of  residue.  1114 

I  1356.  When  premises  may  be  sold 1115 

§  1357.  No  sale  for  less  than  two-thirds  of  valuation — Revaluation 1115 

§  1358.  Terms   of  sale 1115 

§  1359.  Report  of  sale — Exceptions — Order .1115 

§  1360.  Conveyance — Made  on  confirmation — Effect 1116 

§  1361.  Division   of  proceeds 1116 

§  1362.  Sale  of  dower,  homestead  and  other  interests 1116 

§  1363.  Assent  by  court  where  persons  incapable 1116 

§  1364.  Funds  paid  over  or  invested 1117 

§  1365.  When  owner  unknown 1117 

§  1366.  Deposit  of  unclaimed  money  in  county  treasury 1117 

§  1367.  PajTuent  of  money  deposited  on  order  of  court 1117 

§  1368.  Amendments  as  in  chancery 1117 

§  1369.  Powers  of  court 1117 


CONTENTS  OF  VOLUME  II  xxxiii 

ILLINOIS  (Stat.— eont.) 

§  1370.  Ct)sts  and  solicitor 's  fees  apportioned 1118 

§  1371.  Appeals — Writs  of  error Hlg 

§  1372.  Appeals; — Bond    1118 

§  1373.  Any  of  several  parties  may  appeal 1119 

§  1374.  When  record  to  be  filed  with  clerk 1119 

§  1375.  Agreed  case    1121 

§  1376.  Judge  may  certify  questions  of  law 1121 

§  1377.  Exceptions  to  two  preceding  sections 1122 

§  1378.  Appeal  from  appellate  to  supreme  court — :Final  judgment 1122 

§  1379.  Supreme  court — To  pass  only  on  law — Exceptions 1124 

§  1380.  Appeals  from  interlocutory  orders  concerning  injunctions  and 

receivers    1124 

EtTLEs  OF  Court 

§  1381.  Appearance   of   parties 1125 

§  1382.  Defaults    1125 

§  1383.  What  may  be  considered  as  motions  of  course 1125 

§  1384.  Calling  and  hearing  of  motions 1126 

§  1384a.  —  Contested  motions    1126 

§  1385.  Default  divorces  and  other  default  suits 1128 

§  1386.  Withdrawal    of    solicitors 1128 

§  1387.  Abstract  of  pleadings  and  evidence 1128 

§  1388.  Decrees,  etc.,  as  to  sale  of  real  estate 1129 

§  1389.  Changing  final  decree  as  to  alimony  or  custody  of  children.  .  .  .1129 

§  1390.  Bonds     : '. 1129 

§  1391.  Complete   record,   etc 1129 

§  1392.  Receivers     1129 

§  1393.  Taking   testimony — Proceedings — Closing    proofs 1129 

§  1394.  Competency  of  witnesses — Examination — Eulings  on  evidence — 

Objections   and   exception.s 1130 

§  1395.  Accounting — Examination  of  party 1131 

§  1396.  Examination   of  creditors,  etc 1131 

§  1397.  Use  of  affidavits,  depositions,  etf 1131 

§1398.  Bill   of   petition — Filing — Examination — Indorsement 1132 

§  1399.  Attendance  of  solicitors  on  Saturday ll32 

§  1400.  Appearance  of  parties 1132 

§  1401.  Defaults    1133 

§  1402.  Motions    of   course : 1133 

§  1402a.  — What  may  be  considered  as  motions  of  course 1133 

§  1402b.  —  How   made    1133 

§  1403.  Motions     1134 

§  1403a.  — .Contested  motions    1134 

§  1404.  Trial  calendar   1136 

§  1405.  Sickness,   etc.,   of   solicitor 1136 

§  1406.  Passed    cases 1137 

§  1407.  Divorces   and   default   cases 1137 

§  1408.  Withdrawal   of   solicitor 1137 

§  1409.  Abstract  of  pleadings   and  evidence 1138 

§  1410.  Decrees,  etc.,  as  to  sale  of  real  estate 1138 

§  1411.  Changing  final  decree  as  to  alimony  or  custody  of  children.  . .  .1138 

§  1412.  Bonds 1138 

§  1413.  Complete   record,   etc 1138 

§  1414.  Receivers    . 1139 

§  1415.  Pleadings  and  copies  thereof 1139 

§  1416.  Chancery  register   1139 

§  1417.  Costs    1140 

§  1418.  Application  to  sue  as  poor  person 1140 

§  1419.  Taking   testimony — Proceedings — Closing   proof 1141 

§  1420.  Competency  of  witnesses — Examination— Eulings  on  evidence — 

Objections  and  exceptions 1142 

§  1421.  Accounting — Examination  of  party 1143 

S  1422.  Examination  of  creditors,  etc 1143 


xxxiv  EQUITY  PRACTICE 

ILLINOIS  (EULES— cont.) 

§  1423.  Use  of  affidavits,  depositions,  etc 1143 

§1424.  Bill   or   petition — Filing — Examination — Indorsement 1144 

§  1425.  Attendance  of  solieitois  on  Saturday 1144 

§  1426.  Kule  as  to  certificates  of  good  moral  character 1144 

§  1427.  Eules— When  to  go  into  effect 1145 


CHAPTER  XXXIV 
MAINE 

Statutes 

§  1428.  Commencement   of  suit — Issue  of  subpoena — Return   day — At- 
tachment   in    aid — Service    of    process — Contents    of    bill — 

Amendments     1146 

§  1429.  Certificate  of  commencement  of  suit — Recording 1146 

§  1430.  Verification    of    bill 1147 

§  1431.  Discovery     '. 1147 

§  1432.  Appearance — Default- — Decree   pro   confesso — Opening 1147 

§  1433.  Answer — Default — Decree  pro  confesso — Opening — Signing  and 

verifying    answer    1147 

§  1434.  Replication— Time   for   filing 1148 

§  1435.  Time  for  ans\Yer,  replication  and  hearing — Court  may  fix 1148 

§1436.  Masters  in  chancery — Ap]iointment — Term— Duties — Fees 1148 

§  1437.  Equity  terms — Hearings — Issuance  of  process — Powers  of  single 

justice — Rule  days    1149 

§  1438.  Hearing— Court  may  fix — Jury  tiial 1149 

§  1439.  Evidence — Oral   testimony — Transcribing    1149 

§  1440.  Decrees — Power   to   enter 1149 

§  1441.  Appeals  from  final  decrees — Entering — Hearing — Docket  below.  1150 
§1442.  Receivers,  injunctions  and  prohibitions  while  appeal  pending.  .1150 
§  1443.  Appeals  from  interlocutorj'  decrees — Revision  on   appeal   from 

final  decree   1150 

§  1444.  Reporting  cause  to  law  court 1151 

§  1445.  Further  time  to  appeal 1151 

§  1446.  Exceptions — Hearings — Findings 1151 

§  1447.  Dating  orders  and  decrees 1152 

§  1448.  Issue  of  process  for  enforcement  of  decree 1152 

§  1449.  Recording  decrees  affecting  real  estate 1152 

§  1450.  Place  of  hearings 1152 

§  1451.  Evidence  on  appeal 1153 

§  1452.  Framing  issues  of  fact — Confirming  or  setting  aside  verdict — 
Appeal  and  exceptions — Confirming  or  setting  aside  verdict — 

New   trials    1153 

§  1453.  Issue  of  process  to  enforce  decree 1153 

§  1454.  Preliminary   injunctions — Perpetual    injunctions 1153 

§  1455.  Summary  process — Contempt — Hearing — Punishment — Appeal.  1154 
§  1456.  Frivolous    or    vexatious    exceptions    or    appeals — Certificate    of 

justice — Decision — Costs 1155 

§  1457.  Overruling  for  want  of  prosecution 1155 

§  1458.  Absent    defendant    not   served    with    process — Review    of    decree — 
Supersedeas— Review  in  case  of  fraud,  accident,  or  mistake — 

Time  for  filing  petition 1155 

§  1459.  Review  of  interlocutory  orders  or  decrees 1156 

§  1460.  Rules 1156 

§  1461.  Transfer  of  actions  at  law  to  equitv 1156 

§  1462.  Transfer  of  suit  in  equity  to  law  side 1156 

§  1463.  Transfer  of  action  at  law  to  equity  docket 1157 

§  1464.  Equitable  relief  in  action  at  law 1157 

§  1465.  Equitable  defences  and  replies  in  action  at  law — Transfer  of 

cause    1157 

§  1466.  Protection  of  equitable  rights  in  action  at  law : 1158 


CONTENTS  OF  VOLUME  II  xxxv 

MAINE  (Stat.— cont.) 

§  1467.  Attachment  to  secure  judgment 1158 

§  1468.  Equity  to  prevail 1158 

§  1469.  Proving  execution  of  documents 1158 

§  1470.  Death  of  party — Kevivor  against  heirs  or  representatives 1158 

§  1471.  Indorsement  of  bill — Security 1159 

§  1472.  Proceedings  against  indorser 1159 

§  1473.  When  new   indorser   necessary 1159 

§  1474.  Description    of    unknown   or   non-resident   defendants — Joinder 

of  parties  plaintiff 1160 

§  1475.  Service  by  posting  or  publication — Appointment  of  agents,  etc. 

— Cost   of   appearance 1161 

§  1476.  Decree  against  defendants  not  personally  served 1161 

§  1477.  Wild    lands 1162 

§1478.  Eight  of  redemption — Demand  of   accounting — Bill 1162 

§  1479.  Eedemption  after  payment  or  tender  where  mortgagee  never  in 

possession    1163 

§  1480.  Eedemption  before  breach  of  condition  or  tender  of  payment 

where  mortgagee  non-resident — Notice — Fraudulent  mortgage.  1163 
§1481.  Eedemption  where  mortgagee  non-resident  or  residence  unknown.  1163 
§  1482.  Payment  or  tender  to  non-resident  mortgagee  before  foreclosure 
— Proceedings   for   redemption — Notice — Discharge   of  mort- 
gage      1164 

§  1483.  Time  for  proceedings  founded  on  tender  or  performance  before 

suit   1164 

§  1484.  Joinder  of  parties  after  suit  commenced 1164 

§  1485.  Execution     1165 

§  14S6.  Deductions  from  money  paid  into  court  for  redemption 1165 

§  1487.  Time  and  manner  of  jiroceeding 1165 

§  1488.  Bill  in  equity  after  judgment  in  review 1166 

EuLKS  OF  Court 

§  1489.  The  court   1166 

§  1490.  Clerk    1166 

§  1491.  Eule  days   1166 

§  1492.  The   bill    1167 

§  1493.  Verification     1]67 

§  1494.  Process    1167 

§  1495.  Service  on  non-residents 1167 

§  1496.  Appearance     1168 

§  1497.  Pleadings    in    defence 1168 

§  1498.  Answers     1168 

§  1499.  Jury  trials   1168 

§  1500.  Jurats    1169 

§  1501.  Discovery,    etc 1169 

§  1502.  Demurrers  and  pleas 1169 

§  1503.  Certification  of  demurrers  and  pleas 1169 

§  1504.  Answers   to   cross-bills 1169 

§  1505.  Eeplications    1169 

§  1506.  Signature   of  counsel 1170 

§  1507.  Exceptions    to    bills 1170 

§  1508.  Amendments     1170 

§  1509.  Bills    of    revivor 1170 

§  1510.  Setting  cause   for   hearing 1170 

§  1511.  Overruled  defences   1170 

§  1512.  Oral    evidence    1171 

§  1513.  Documentary  evidence    1171 

§  1514.  Production   of   documents 1171 

§  1515.  Allegations  not  traversed 1171 

§  1516.  Decrees    1171 

§  1517.  Forms  of  decrees 1172 

§  1518.  Master     1172 

§  1519.  Compensation  of  master 1 173 


xxxvi  EQUITY  PRACTICE 

MAINE  (EuLES— cont.) 

§  1520.  Exceptions  to  master 's  report 1173 

§  1521.  Costs    1173 

§  1522.  Eesponsibilities  of  attorney 1174 

§  1523.  Verification   of   copies 1174: 

§  1524.  Notices    1174 

§  1525.  Presenting  application  once  acted  upon  to  different  justice.  .  .  .1174 

§  1526.  Writs  of  injunction 1175 

§  1527.  Kebearings    1175 

§  1528.  Interlocutory    hearings 1175 


CHAPTER  XXXV 
MARYLAND 

Statutes 

§  1529.  When  death  does  not  abate 1176 

§  1530.  Suggestion  of  death  of  party 1176 

§  1531.  Subpoena  for  representative  of  deceased  party — Notice  to  non- 
resident    1176 

§  1532.  Suggestion  of  death  by  representative  of  deceased  party 1176 

§  1533.  Death  of  representative  of  deceased  party 1177 

§  1534.  Death  of  party  after  cause  set  down  or  submitted — Decree.  ..  .1177 
§  1535.  Death   after    decree   for   account,    sale   or   partition,    or   after 

answer^— Appearance  by  heir 1177 

§  1536.  Death  of  party  after  final  decree — Proceedings 1178 

§  1537.  Failure  of  representative  to  appear 1178 

§  1538.  Service  on  representative  evading  process 1178 

§  1539.  Service  on  absent  parties  on  death  of  party 1178 

§  1540.  Bill  of  revivor — Service  of  notice 1179 

§  1541.  Marriage  of  party — Bringing  in  spouse 1179 

§  1542.  Eight   to   amend 1179 

§  1543.  Amendment    where    party    under    disability    or    non-resident — 

Pleadings  and  proof 1179 

§  1544.  Laying  matters  before  auditor 1180 

§  1545.  Proceedings  by  auditor — Notice — Adjournments 1180 

§  1546.  Examination  of  parties  and  witnesses — Compelling  production  of 

documents    1180 

§1547.  Accounting — Examination  of  parties — Duties  of  auditor 1181 

§  154S.  Power  to  compel 1181 

§  1549.  Failure  to  comply  with  order  to  produce 1182 

§  1550.  Establishing  right  to  legal  character  or  to  property 1182 

§  1551.  When  declaratory  decree  improper 1182 

§  1552.  Eights  of  trustee  of  property 1183 

§  1553.  Contingent  characters  or  rights 1183 

§  1554.  Making   up    issues — Trial 1183 

§  1555.  Persons  bound — Trustees  1183 

§  1556.  Appeals   1184 

§  1557.  Judgment  at  law  not  essential — Determining  issues  of  fact.  . .  .1184 

§  1558.  Attachment   for   violation 1184 

§  1559.  Waste    after    injunction — Punishment — Transfer    of    property 

after  injunction — Punishment — Rights  of  purchaser 1184 

§  1560.  Discharge  from  attachment  for  violation — Costs 1185 

§1561.  Application    by    executor    or    administrator    for    injunction — 

Bond    " 1185 

§1562.  Injunction  against  sale  on  execution — Return  of  property 1186 

§  1563.  Taking  testimony  on  injunction  and  receivership  motions 1186 

§  1564.  Adequate  remedy   at  law — When   injunction   or  mandamus  re- 
fused—Bond     1186 

§  1565.  Submission   of   controversy — Decree 1187 

§  1566.  Confirmation  of  sale  by  executor 1187 

§  1567.  Decree  for  deed — Trustee — Decree  as  deed 1187 


CONTENTS  OP  VOLUME  II  xxxvii 

MARYLAND  (Stat.— cont.) 

§  1568.  Contract  rights  of  infant  or  person  non  compos  mentis — Review 

of  decree  against  infant 1187 

§  1569.  Notice  to  non-residents 1188 

§  1570.  Notice   by    publication   to   non    compos    mentis   non-resident — 

Failure  to  appear  1188 

§  1571.  Decree  against  non-resident  for  execution  of  contract  for  sale 

of  property — Bill  of  review 1188 

§  1572,  Proceedings  on  return  of  subpoena  non  est 1189 

§  1573.  Suits  against  corporations — Notice  by  publication  where  officers 

non-resident    1189 

§  1574.  Interpleader — Non-residents     failing     to     file     answers — Pro- 
ceedings     1189 

§  1575.  Unknown  whether  non-resident  living  or  dead — Heirs  unknown 
— Executor     or     administrator     unknown — Description     and 

prayer  for  notice  by  publication 1190 

§  1576.  Deceased    non-residents — Notice    by    publication    to    heirs    and 

representatives — Proceedings — Intervention  by  representative.il 90 
§  1577.  Bill  affecting  realty — Heirs  unknown — Description — Notice  by 

publication — Effect  of  decree 1191 

§  1578.  Foreign  representative  as  party — Service  of  process — Appear- 
ance— Intervention    1192 

§  1579.  Appearance   by  non-resident 1193 

§  1580.  Notice  by  publication — Time  and  manner  of  giving — Order — 

Proof  of  service 1193 

§  1581.  Bill  for  renewal  of  lease — Unknown  parties — Service  by  publica- 
tion— Effect  of  decree  1194 

§  1582.  Partition^Sale — Persons     under     disabilit.y — Deeds — Parties — 

Rights  of  lienors   1 195 

§  1583.  Partition  of  separate  lots 1196 

§  1584.  Courts  always  open — Terms 1196 

§  1585.  Dockets    1196 

§  1586.  Commencement  of  suit 1197 

§  1587.  Issuance  of  order  or  process — Time  for 1197 

§  1588.  Process — When  returnable 1197 

§  1589.  Duty  of  clerk  to  issue  process — Summons  for  each  defendant.  .1197 

§  1590.  Service  of  process 1197 

§  1591.  Appearance    by    guardians    and    committees — Appointment    of 

guardian  ad  litem 1198 

§1592.  Suits  by  persons  under  disability — Prochein   ami 1198 

§  1593.  Appearance — Time     for    entering — Time    for    answer — Noting 

appearance     1199 

§  1594.  Failure  to  answer,  plead  or  demur — Decree  pro  coufesso 1199 

§  1595.  Discovery — Affidavits— Final    decree 1200 

§  1596.  Failure    to    answer    after    appearance — Insufficient    answer — 

Decree  pro  eonfesso   1200 

§  1597.  Answer  after  interlocutory  order  or  decree — Granting  permis- 
sion  1200 

§  1598.  Recitals  in  bill — Scandal  and  impertinence — Striking  out 1201 

§  1599.  Introduction  to  bill— Form    1201 

§  1600.  Paragraphs — Numbering — Statement  of  facts— Necessary  aver- 
ments— Prayer   for  relief — Omission   of  formal  averments — 

Prayer  for  answer    1201 

§  1601.  Prayer  for  process  or  publication 1202 

§  1602.  Time   for   answer,    plea    or    demurrer — Special    leave — Answer, 

plea  or  demurrer  to  part  of  bill 1202 

§  1603.  Affidavit  to  plea  or  demurrer — Form  of  demurrer 1203 

§  1604,  Argument  on  plea  or  demurrer — Taking  issue  on  plea — Effect  of 

judgment  for  defendant   1203 

§  1605.  Defendant    setting    down    plea    or    demurrer    for    argument — 

Notices   1203 

§  1606.  Amendment  where  demurrer  or  plea  allowed 1203 

§  1607.  Answer    over    where    demurrer    or    plea    overruled — Vexatious 

demurrer    1203 


xxxviii  EQUITY  PRACTICE 

MARYLAND  (Stat.— cont.) 

§  1608.  Costs  and  allowance  where  plea  or  demurrer  overruled 1204 

§  1609.  Answer — Form — Matters  to  be  included 1204 

§  1610.  Si^ecial  interrogatories  to  defendant — Interrogatories  to  plain- 
tiff— Notice — Time   to   answer    1205 

§  1611.  Eefusal  to  answer  interrogatories — Insufficient  answers — Filing 

replication    1205 

§  1612.  Cross-bills— Form— Service   1206 

§  1613.  Verification  of  answer — Answer  as  evidence — Exceptions 1206 

§  1614.  Unverified  answer  as  evidence — Verified  answer  as  affidavit.  ..  .1206 

§  1015.  Eeplieation — Time  of  filino- — Failure  to  file 1207 

§  1616.  Special  replication — Amendment  of  bill 1207 

§  1617.  Failure  to  amend  bill  in  time — Eights  of  defendant  on  amend- 
ment of  bill — Practice ". 1207 

§  1618.  Enforcement  of  obedience  to  process,  rules  and  orders — Fine — 

Comni  itment    1 208 

§  1019.  Eule  for  security  for  costs  against  non-resident  plaintiff 1208 

i  1620.  Bond  where  parties  numerous 1209 

§  1621.  Allowances    to    examiners,    commissioners,    witnesses,    masters, 

au.litors,  etc 1209 

§  1622.  Filing  opinions    1209 

§  1623.  Heirs  as  parties  to  foreclosure  proceedings 1209 

§  1624.  Bill  of  review  for  failure  to  take  testimony — Supplying  proof.  .1209 

§  1625.  Awarding  costs  and  fee  on  exceptions  to  answer 1210 

§  1626.  Parties  defendant   to   suit  on   joint  and  several  claim — Cross- 
bill by  defendant 1210 

§  1627.  Trustees  representing  parties  beneficially  interested 1210 

§  1628.  Misjoinder  of  parties — How  cured — Deeree  as  between  plaintiffs.1211 

§  1629.  Want  of  parties — Saving  rights  of  absent  ])arties 1211 

§  1630.  "Want    of   parties — Argument    on    objection — Entry   by   clerk — 

Failure  of  plaintiff  to  set  down  cause 1211 

§  1631.  Enrollment  of  decrees  and  orders 1212 

§  1632.  Clerical  mistakes  in  decrees  and  orders — Correction 1212 

§  1633.  Petition  for  rehearing — Contents — Signature — Time  for  grant- 
ing   1212 

§  1634.  Writs  to  several  counties — Costs  for  ^vrougful  issue 1213 

§  1635.  Enforcement    of    decree — Attachment — 'Sequestration — Injunc- 
tion—Practice     1213 

§  1636.  Enforcement  of  orders — Costs 1214 

§  1637.  Writs  for  enforcement  of  decrees,  orders,  etc. — Issue  to  different 
counties — Docketing — Lien — Eenewal — Costs  when  vexatiously 

issued    1214 

§  1638.  Enforcement  of  order  or  decree  for  delivery  of  chattels 1214 

§  1639.  Bill  for  discovery — Failure  to  answer — Examination  of  plaintiff 

— Deeree    1215 

§  1640.  Failure  to  appear — Attachment — Decree  pro  confesso 1215 

§  1641.  Failure  to  answer — Attachment — Commitment — Decree  pro  con- 
fesso      1216 

§  1642.  Failure  to  appear  or  answer — Proceedings  by  plaintiff 1216 

§  1643.  Issue  of  process — Commission  to  take  testimony 1216 

§  1644.  Mandate  or  injunction — Issue  of 1216 

§  1645.  Discharge  of  mandate  or  injunction — Motion — Appeal 1217 

§  1646.  Possession   of   propeity   or   receipt  of   income   pendente  lite — 

Power  of  court — Appeal   1217 

§  1647.  Order    charging    income,    interest    or    dividends — Service — Dis- 
charge     1217 

§  1648.  Orders  binding  as  to  persons  against  whom  issued 1218 

§  1649.  Decrees  against  infants  and  insane  persons 121,S 

§  1650.  Passing  upon  questions  of  law 1218 

§  1651.  Stating  special  case — Entitling  and   docketing 1219 

§  1652.  Contents  of  special  case — Hearing — Decree 1219 

§  1653.  Persons  under  disability  as  parties  to  special  case 1219 

§  1654.  Eevivor  against  heirs  or  representatives 1220 

§  1655.  Seal  to  pleadings  of  corporation  not  essential 1220 


CONTENTS  OF  VOLUME  II  xxxix 

MAKYLAND  (Stat.— cont.) 

§  1656.  Foreclosure  sales — Deficiency   decree — Effect 1220 

§  1657.  Sale   of   reversion — Disposing  of   rents 122] 

§  1658.  Sale  before  final  decree — Custody  of  proceeds 1221 

§  1659.  Compelling  purcluiser  to  comply  with  terms  of  sale — Ke-sale.  .  .  .1221 

§  1660.  Terms  of  sale    1222 

§  1661.  Bond  where  sale  made  on  credit 1222 

§  1662.  Sale  of  equitable  title 1222 

§  1663.  Corporation  surety  on  receiver's  bond — Penalty 1222 

§  1664.  Eefusal    to    grant    on    ground    of   adequate    remedy    at    law — 

Security  required  of  resisting  party 1223 

§  1665.  Sale  by  trustee   1223 

§  1666.  Bond  of  trustee    1223 

§  1667.  Confirmation  of  trustee  's  sale 1224 

§  1668.  Filing   trustee 's   bond 1224 

§  1669.  Commissions  to  take  testimony — Examiners — Powers — Fees.  .  .  .1224 

§  1670.  Notice  to  examiner — Fixing  hearing — Notice — Subpoenas 1225 

§  1671.   E?camination  of  witness  before  examiner 1225 

§  1672.  Concluding  interrogatory  by  examiner 1226 

§  1673.  Testimony  to  be  written  down — Signing — Objections — Questions 

of  privilege 1226 

§  1674.  Closing  depositions — Authenticating 1227 

§  1675.  Hearing  to  1;e  prompt — Eule  on  adverse  party — Enlarging  time.1227 

§  1676.  Opening  depositions — Holding  for  exception 1228 

S  1677.  Examination  of  witnesses  de  bene  esse 1228 

§  1678.  Oral  examination  of  witnesses 1228 

§  1679.  Same   1228 

§  1679a.  Same 1229 

§  1680.  Taking  testimony  for  hearing  of  interlocutory  applications.  .  .  .1229 

§  1681.  Issue  of  commission  to  take  testimony 1229 

§  1682.  Issue  to  one  person 1229 

§  1683.  One  commissioner  to  act — Duties  as  clerk 1229 

§  1684.  Eules  for  taking  testimony — Fees  of  commissioner 1230 

§  1685.  Compelling  witness  to  attend  and  answer 1230 

§  1686.  Failure  of  part  of  defendants  to  appear 1231 

§  1687.  Addition  to  or  alteration  of  rules 1231 

S  1688.  Removal  of  case  from  law  to  equity 1231 

§  1689.  When  allowed  from  final  decree — Costs  on  affirmance 1232 

§  1690.  When    allowed    in    specified    cases — Injunctions,    reeeivershijis, 

sales,  etc 1232 

§  1691.  Effect  on  previous  orders 1232 

§  1692.  Appeal  as  supersedeas — Bond 1232 

§  1693.  Staying  operation  of  previous  order — Bond 1233 

§  1694.  Time  for  taking  and  entering  appeal 1233 

§  1695.  Transcript    of    record — Transmitting 1233 

§  1697.  Incorporating  substance  of  documents — Transcript 1234 

§  1698.  Objections    raised    in    appellate    court 1234 

§  1699.  Striking  out  entry  of  appeal 1234 

§  1700.  Staying  execution — Bond    1234 

Eules  of  Court 

§  1701.  Courts  always  open — Terms 1235 

§  1702.  Duties  of  clerks  as  to  files  and  dockets 1236 

§  1703.  Commencement  of  suits 1236 

§  1704.  Process  not  to  issue  before  filing  of  papers 1236 

§  1705.  Form  of  process 1236 

§  1706.  When    process    returnable 1236 

§  1707.  Issue  of  process — Separate  summons 1237 

§  1708.  Service  of  process 1237 

§  1709.  Requiring  appearance  for  person  under  disability — Guardian  ad 

litem — Commissions  for  taking  answers  abolished 1237 

§  1710.  Suit  by  person  under  disability 1238 

§  1711.  Entering  appearance 1238 


xl  EQUITY  PRACTICE 

MARYLAND  (Eules— cont.) 

§  1712.  Failure  to  appear,  answer,  plead  or  demur — Decree  pro  confesso.1238 

§  1713.  Bill— Scandal  and  impertinence 1239 

§  1714.  Introductory  part  of  bill 1239 

§  1715.  Contents  of"  bill   1240 

§  1716.  Prayer  for  process  or  publication 1240 

§  1717.  Special  leave  to  answer — Answering  part  of  bill 1240 

§  1718.  Verification  of  plea  or  demurrer — Form  of  demurrer 1241 

§  1719.  Setting  down  demurrer  or  plea  for  argument — Taking  issue.  . .  .1241 

§  1720.  Defendant  setting  down  plea  or  demurrer  for  argument 1241 

§  1721.  Amendment  where  demurrer  or  plea  allowed 1241 

§  1722.  Answer  after  demurrer  or  plea  overruled — Decree  pro  confesso.  3  241 

§  1723.  Answer    1242 

§  1724.  Special  interrogatories  to  defendant 1242 

§  1725.  Refusal  .to  answer  interrogatories — Exception — Replication 1243 

§  1726.  Cross-bills    1243 

§  1727.  Answer  as  evidence   1244 

§  1728.  Replication    1244 

§  1729.  Amendment  of  bill— Leave 1245 

§  1730.  Amendment  of  bill— Rights  of  defendant 1245 

§  1731.  Claim  against  several — Parties — Cross-bill 1245 

§  1732.  Trustees  as  parties  1246 

§  1733.  Misjoinder  of  parties — Decree  as  between  parties 1246 

§  1734.  Want  of  parties — Saving  rights  of  absent  parties 1247 

§  1735.  Want  of  parties — Setting  down   for  argument  on  exception — 

Adding  parties    1247 

§  1736.  Commission  to  take  testimony — Examiners — Powers  and  duties 

—Fees   ■. 1247 

§  1737.  Taking  testimony  before  examiners — Compelling  attendance  of 

witnesses   ' 1248 

§  1738.  Examination  of  witnesses  before  examiners 1249 

§  1739.  Concluding  interrogatory  by  examiner 1249 

§  1740.  Taking  down   testimony  before  examiner — Signing — Reporting 

objections — Costs     1250 

§  1741.  Authenticating,  closing  and  filing  depositions 1250 

§  1742.  Delay  in  taking  testimony.  . .  .' : 1251 

§  1743.  Opening    depositions    1251 

§  1744.  Examination  of  witnesses  de  bene  esse 1251 

§  1745.  Oral  examination  of  witnesses — Taking  down  evidence 1251 

§  1746.  Interlocutory  applications — Taking  testimony 1252 

§  1747.  Special  case  stated — Entitling — Docketing   1252 

§  1748.  Special  case  stated — Form — Hearing — Decree 1253 

§  1749.  Special  case  stated — Persons  under  disability  as  parties 1253 

§  1750.  Enrolment  of  orders  and  decrees 12.54 

§  1751.  Correction  of  clerical  errors  in  orders  and  decrees 1254 

§  1752.  Rehearing- — Petition — Signing  and  verifying — Time  for  grant- 
ing—Effect   12.54 

§  1753.  Reference  to  auditor    1254 

§  1754.  Hearing  before  auditor — Adjournment   1255 

§  1755.  Examination  of  witnesses  and  parties  by  auditor — Compelling 

production  of  papers   1255 

§  1756.  Production  of  accounts — Examination  of  person"  offering 1256 

§  1757.  Rules    1256 

§  1758.  Time  for  taking  and  entering 1256 

§  1759.  Transcript 1257 

§  1760.  Contents  of  transcript 1257 

§  1761.  Incorporation  of  documentary  evidence  in  transcript 1258 

§  1762.  Transmitting  transcript — Docketing  case 1258 

§  1763.  Failure  to  transmit  transcript  in  time 1258 

§  1704.  Cross-appeals  or  more  than  one  appeal — Transcript — Costs.  .  .  .1259 

§  1765.  Transcript  on  second  appeal 1259 

§  1766.  Writ  of  diminution 1259 

§  1767.  Making  up  transcript — Printing — Cost 1259 

§  1768.  Appeals  from  pro  forma  orders,  decrees  or  judgments 1260 


CONTENTS  OF  VOLUME  II  xli 

CHAPTER  XXXVI 

MASSACHUSETTS 

Statutes 

§  1769.  Courts  having  equity  jurisdiction 1261 

§  1770.  Issuance  of  writs  and  process 1261 

§  1771.  Venue    1261 

§  1772.  Adequate   remedy  at  law 1261 

§  1773.  Procedure — Process — Rules   1262 

§  1774.  Commencement  of  suit — Summons — Attachment — Trustee  proc- 
ess— Entry  of  writ 1262 

§  1775.  Insertion  of  bill  or  petition  in  summons 1262 

§  1776.  Construction  of  wills — Notice  of  petition — Service — Publication.1263 

§  1777.  Docket — Return  of  process   1263 

§  1778.  Bill — Contents — Address — Introductory    part — Prayer    for    dis- 
covery     1263 

§  1779.  Demurrer  or  plea — Answer  1264 

§  1780.  Signature  to  pleadings   1264 

§  1781.  Hearing  and  determination  by  one  justice 1264 

§  1782.  Court  always  open — Rule  days 1264 

§  1783.  Appeal  from  final  decree 1264 

§  1784.  Docketing   appeal    1265 

§  1785.  Appeal — Receiver — Injunction — Prohibition    1265 

§  1786.  Suspension  of  execution  of  decree  pending  appeal 1265 

§  1787.  Justice  to  report  facts  on  appeal 1266 

§  1788.  Appeal — Reporting   evidence — Additional   evidence 1266 

§  1789.  Appeal   from   interlocutory   decree 1266 

§  1790.  Revision  of  interlocutory  decree  on  appeal  from  final  decree.  .  .  .1267 

§  1791.  Staying  operation  of  interlocutory  decree 1267 

§  1792.  Failure  to  appeal  in  time — Granting  leave 1267 

§  1793.  Justice  reserving  and  reporting  evidence  and  questions  of  law.  1267 
§  1794.  Defendant  removing  suit  to  supreme  judicial  court — Powers  of 

superior  court 1267 

§  1795.  Justice  ordering  suit  removed  to  supreme  judicial  court 1268 

§  1796.  Dissolution  of  injunction  issued  by  another  court 1268 

§  1797.  Dating  entry  of  order  or  decree 1268 

§  1 798.  Execution  of  final  decree — Issue  of  process 1268 

§  1799.  Justice  hearing  cases  pending  in  another  county 1269 

§  1800.  Trial  of  issues  of  fact — Supreme  judicial  court  framing  issues.  .1269 

§  1801.  Summoning  jury  for  trial  of  issues  of  fact — Trial 1269 

§  1802.  Trial  of  issues  of  fact — Superior  court  framing  issues 1269 

§  1803.  Writs  of  seisin  and  execution 1270 

§  1804.  Justices  sitting  in  Boston 1270 

§  1805.  Justice  sitting  in  Springfield 1270 

§  1806.  Removal  of  papers  from  files 1270 

§  1807.  Service  of  summons  or  subpoena 1270 

§  1808.  Procedure  as  at  law 1270 

§  1809.  When  allowed  for  discovery 1271 

§  1810.  Answers 1271 

§  1811.  Filing    interrogatories — Failure    to    answer — Extent    to    which 

answer  compelled 1271 

§  1812.  Failure  or  refusal  to  answer 1272 

§1813.  Interrogatories  to  corporations — To  persons  under  disabilitv.  .  1272 

§  1 814.  Costs    '.  .  .  1272 

§  1815.  Sealing  up  matters  not  pertinent 1272 

§  1816.  Frivolous  prayer  for  discovery 1273 

§1817.  Discretion  of 'court 1273 

§  1818.  Before  entry  of  writ    1273 

§  1819.  Indorsement   after  entry  of  writ 1274 

§  1820.  Removal  of  plaintiff  after  suit  commenced 1274 

§  1821.  Indorser  moving   from   state 1274 

§  1822.  Indorsement  to  secure  costs  in  supreme  judicial  court 1274 


xlii  EQUITY  PRACTICE 

MASSACHUSETTS  (Stat.— cont.) 

§  1823.  Dismissal  on  failure  to  procure  indorser 1274 

§  1824.  Substitutiug  indorser    1274 

§  1825.  Appearance  or  summons   1274 

§  1826.  A"ew    trial — When    denied 1275 

§  1827.  Appeal — Directing  entry  of  judgment — Trial  of  issues  of  fact.  1275 

§  1828.  Amendments  in  appellate  court — Taking  evidence 1276 

§  1829.  Passing  on  exceptions  where  evidence  reported 1276 

§  1830.  Case  stated— Powers  of  court 1277 

§  1831.  Decree  to  operate  as  deed 1277 

§  1832.  Eecording  decree    1277 

§  1833.  Eegistration  of  copy  of  decree 1278 

§  1834.  Enforcement  of  performance  of  decree 1278 

§  1835.  Notice— Procedure    1278 

§  1836.  Trial  by  jury    1279 

§  1837.  Provision  not  applicable  to  probate  courts 1279 

§  1838.  Describing  unknown  defendants — Joinder  of  plaintiffs 1279 

§  1839.  Constructive  service  of  notice 1280 

§  1840.  Non-appearance  of  defendants  not  actually  served — Guardians 

ad  litem    1280 

§  1841.  Expenses  of  guardian  ad  litem 1280 

§  1842.  Decree    1281 

§  1843.  Changing  action  at  law  to  suit  in  equity 1281 

§  1844.  When  debtor  may  sue " 1281 

§  1845.  Offer  of  payment — Deposit  of  monev  with  clerk 1282 

§  1846.  Costs    ". 1282 

EuLEs  OF  Court 

§  1S47.  Original   process    1282 

§  1848.  Is-suanee  of  injunction   1283 

§  1849.  Eule  days   .  . 1283 

§  1850.  Process— Service  and  return   1283 

§  1851.  Non-residents — Appearance — Service  by  publication 1284 

§  1852.  Printing  pleadings    , 1284 

§  1853.  Answer 1284 

§  1854.  Eeturn  days — Default — Decree  confessed   1285 

§  1855.  Demurrer,  plea  or  answer — Part  of  bill 1285 

§  1856.  Setting  down  plea  or  demurrer  for  argument — Taking  issue  on 

plea    1285 

§  1857.  Answer  when  plea  or  denuirrer  overruled 1285 

§  1858.  Costs  on  interlocutory  order  or  decree 1286 

§  1859.  Special  matter  in  answer 1286 

§  1860.  Cross-bills    1286 

§  1861.  Eeplications    1286 

§  1862.  Eeplieation — Setting  down  caf^e  for  hearing — Exceptions 1286 

§  1863.  Discovery  —  Exceptions  —  Answer  —  Argument  —  Costs  — 

Second  answer   1286 

§  1864.  Amendment  of  bill— Costs 1287 

§  1865.  Amendment  after  demurrer   1287 

§  1866.  Amendment — Service  on  defendant — Answer 1287 

§  1867.  Amendments — Discretion  of  court 1287 

§  1868.  Service   of   notices    1288 

§  1869.  Death  of  party — Bringing  in  representative 1288 

§  1870.  Parties  not   in  jurisdiction   of  court 1288 

§  1871.  Bill  of  revivor — Supplemental  bill — Joinder  of  parties 1288 

§  1872.  Bills   by    executors    or    trustees — Interpleader — Appearance    of 

counsel  of  plaintiff  for  defendant 1288 

§  1873.  When  case  ready  for  hearing 1289 

§  1874.  Admissions  bv  failure  to  answer 1289 

§  1875.  Depositions   ." 1289 

§  1876.  Hearing  before   master    1289 

§  1877.  Eeport  of  master — Objections — Exceptions    1289 

§  1878.  Exceptions  to  master 's  report 1290 


>     CONTENTS  OF  VOLUME  II  xliii 

MASSACHUSETTS  (Rules— eont.) 

§  1879.  Place  of  hearing  causes    1290 

§  1880.  Hearing    before    justice    in    another    county — Injunction    pro- 
ceedings   1290 

§  1881.  Reporting  evidence  on  interlocutory  application 1290 

§  1882.  Trial  of  issues  of  fact  by  jury 1291 

§  1883.  Drafting  decree— Form    1291 

§  1884.  Rules  in  actions  at  law,  when  applicable 1292 

§  1885.  Docket   1292 


CHAPTER  XXXVII 

MICHIGAN 

Statutes 

§  1886.  Circuit  courts  to  be  courts  of  chancery 1293 

§  1887.  Venue  of  suits  in  chancery — Proceedings  in  behalf  of  state. . .  .1293 

§  1888.  Jurisdictional    amount — Specific    performance 1294 

§  1889.  Creditors '    bills    1294 

§  1890.  —  Power   of   court    1295 

§  1891.  Set-offs   1295 

§  1892.  Bills  for  discovery  of  frauds  in  confessing  judgment 1295 

§  1893.  —  When   answer  not  evidence 1296 

§  1894.  Lis  pendens    1296 

§  1895.  When  oath  to  answer  may  be  waived 1296 

§  1896.  Rules  of  practice .' 1296 

§  1897.  Receivers^ — Power  to  appoint   1297 

§  1898.  —  Application    1297 

§  1899.  Quieting  title  1297 

§  1900.  Terms     l'297 

§  1901.  When  equity  calendar  to  be  taken  up 1298 

§  1P02.  Forms  of  ])rocess    1298 

§  1903.  Process — Signing  and  service   1298 

§  1904.  —  Seal  and  date   1298 

§  1905.  —  Blanks — Duty  to  furnish 1299 

§  1906.  When  appearance  of  defendant  may  be  ordered  entered 1299 

§  1907.  Rules  for  taking  bills  as  confessed  and  decrees  by  default 1299 

§  1908.  Pleadings— Where  filed   1299 

§  1909.  Service  of  pleadings  on  part  of  complainant 1299 

§  1910.  Service  of  pleadings  on  part  of  defendant 1300 

§  1911.  Service  on  or  by  solicitor 1300 

§  1912.  When  cause  deemed  at  issue — Necessity  for  subpoena 1300 

§  1913.  Trial  by  jury — Verdict ' 1300 

§  1914.  Enrollment  of  decree,  etc 1300 

§  1915.  • —  Filing  by  register    1301 

§  1916.  Recording  decree  affecting  realty — Effect  where  conveyance  de- 
creed     ." 1301 

§  1917.  Decree — How  discharged   1301 

§  1918.  —  Order  for  discharge 1302 

§  1919.  How  performance  of  decree  may  be  enforced 1302 

§  1920.  When  death  not  to  abate  suit 1302 

§  1921.  When  suit  to  abate  as  to  party  dying 1302 

§  1922.  Revival  of  suits  against  representatives  of  decedents 1302 

§  1923.  —  Service  of  order  on  representative 1303 

§  1924.  — When  appearance  of  representative  may  be  ordered  entered.  .1303 
§  19-:5.  — When  bill  may  be  taken  as  confeFsed  or  an.swer  compelled.  .  .1303 
§  1926.  — When  further  answer  may  be  required  from  representative.  ..1303 

§  1927.  —  Failure  to   answer    1304 

§  1928.  ■ —  When  representatives  of  deceased  complainant  may  be  made 

complainants    1304 

§  1929.  — Defendant  compelled  to  answer  amended  bill 1304 


xliv  EQUITY  PRACTICE 

MICHIGAN  (Stat.— cont.) 

§1930.  — When   surviving   complainant   may   make   representatives  of 

deceased  complainants  defendants    1304 

§  1931.  —  Order  to  show  cause  why  suit  should  not  stand  revived  or 

bill  be  dismissed   1304 

§  1932.  —  Proceedings  if  no  cause  shown 1305 

§  1933.  — Eevival  on  petition  of  surviving  defendant 1305 

§  1934.  —  Proceedings  by  surviving  defendant 1305 

§  1935.  Publication  of  order  requiring  creditors  to  exhibit  demands.  .  .  .1305 
§  1936.  Absent,   concealed   or   nonresident   defendants — Order   for   ap- 
pearance     1306 

§  1937.  —  Eequisites  of  order 1306 

§  1938.  —  Publication  of  order  for  appearance 1306 

§  1939.  —  Extension  of  time  for  appearance 1307 

§  1940.  —  When   bill   may   be   taken   as   confe&sed — Eeference   to   take 

proofs    1307 

§  1941.  —  Taking  of  proof  before  master 1307 

§1942.  — Examination  of  complainant  with  reference  to  payments.  .  .1307 

§  1943.  —  Report   of   master    ' 1308 

§  1944.  —  Enforcement  of  decree   1308 

§  1945.  —  Security  before  delivery  of  possession 1308 

§  1946.  —  Satisfaction  of  decree  out  of  sequestered  estate 1308 

§  1947.  —  Appearance  after  decree 1308 

§  1948.  —  Time  for   appearance    1309 

§  1949.  —  Confirmation  of  decree   1309 

§  1950.  —  Decree  for  sale  on  bill  for  foreclosure 1309 

§  1951.  — Proceedings   where   defendant   appears   before   sale 1309 

I  1952.  —  Appearance  of  defendant  not  to  affect  sale 1309 

§  1953.  Injunction  to  stay  proceedings  at  law — Bond 1310 

§  1954.  —  Deposit  before  issuance    1310 

§  1955.  — To  stay  proceedings  after  judgment  in  personal  action 1310 

§  1956.  —  PajTiient  of  deposit  to  plaintiff  in  action  at  law 1311 

§  1957.  —  Proceedings  where  adverse  decision  after  payment 1311 

§  19o8.  —  To  stay  proceedings  for  recovery  of  lands 1312 

§  1959.  —  Damages  on   dissolution 1312 

§  1960.  —  V>'hen  bond  taken  in  lieu  of  deposit 1312 

§  1961.  —  When  deposit  and  bond  dispensed  with 1312 

§  1962.  —  Ascertaining  sufficiency  of  sureties 1313 

§  1963.  —  Filing  of  bond 1313 

§  1964.  —Prosecution  of  bond 1313 

§  1965.  —  Power  to  grant  injunctions 1313 

§  1966.  Venue     1314 

§  1967.  Power  of  court  to  decree  sale  of  mortgaged  premises 1314 

§  1968.  Court  may  compel  delivery  of  possession,  and  direct  payment 

of  balance    1314 

§  1969.  Xo  proceedings  to  be  had  at  law  while  bill  pending,  etc 1315 

§  1970.  When    court    may    decree    payment    of    balance    against   other 

person  than  mortgagee 131 5 

§  1971.  Bill  to  state  whether  any  proceeding  had  at  law 1315 

§  1972.  If  judgment  has  been  obtained  at  law,  no  proceedings  to  be  had, 

unless  execution  returned  unsatisfied 1315 

§  1973.  Sales,  how  made 1316 

§  1974.  Form  of  deeds  executed  on  sale  of  property — Where  deposited 

— How  recorded— Duties  of  register  of  deeds  in  case  of  re- 
demption— When  deeds  to  become  operative 1316 

§  1975.  Application  of  proceeds  of  sale 1317 

§  1976.  When  surplus  may  be  put  out  at  interest 1317 

§  1977.  When  bill  to  be  dismissed  on  payment  of  amount  due  and  costs. 1317 
§  1978.  When  proceedings  to  be  stayed  on  payment  of  amount  due,  etc. .1318 
§  1979.  Reference  in  case  of  decrees  for  complainant  in  certain  cases.  1318 

§  19S0.  Proceedings  in  case  of  default  subsequent  to  decree 1318 

§  1981.  When  whole  of  premises  to  be  sold  in  the  first  instance 1318 

§  1982.  In  case  of  sale  of  whole  premises,  how  proceeds  applied 1319 

§1983.  Proceedings   when   circuit   judge   disqualified 1319 


CONTENTS  OF  VOLUME  II  xlv 

MICHIGAN  (Stat.— cont.) 

§  1984.  Eight  to  appeal— Time  1320 

§  1985,  Claim   of   appeal— Filing    1320 

§  1986.  Extension  of  time 1321 

§  1987.  Stay  of  proceedings— Bond 1321 

§  1988.  Evidence     1322 

§  1989.  Time  for  perfecting— Bond   1322 

§  1990.  Duty  of  register   1323 

§  1991.  Powers  of  supreme  court  in  appeal 1324 

§  1992.  Kecords  to  be  remitted 1324 

§  1993.  Powers 1324 

§  1994.  Power  of  successor  of  judge  to  sign 1325 

§  1995.  Recording  decrees  of  former  courts 1325 

§  1996.  Opinion  on  final  hearing — When  to  be  rendered 1326 

§  1997.  Decision  of  court — When  given 1326 

§  1998.  Circuit   judge    may   transmit   judgment    in    vacation — Clerk   or 

register  to  enter  same 1326 

§  1999.  Notice  of  entry  to  be  given   1326 

§  2000.  Orders  in  vacation-time,  how  computed  when  writ  of  error  or 

appeal  is  taken 1327 

§  2001.  Where  judge  is  interested,  suit  may  be  transferred  to  another 

circuit    " 1327 

§  2002.  Application  for  transfer  of  suit 1327 

§  2003.  Judge  to  appoint  time  of  hearing  application 1328 

§  2004.  W^hen  judge  to  grant  order  for  transfer 1328 

§  2005.  In  ca?e  parties  agree  on  court — In  case  no  agreement  reached.  .1328 

§  2006.  Jurisdiction  of  court  to  which  case  assigned 1328 

§  2007.  Clerk  to  transfer  papers  with  copy  of  records,  etc 1329 

§  2008.  Fees  of  clerk  and  register  on  transfer 1329 

§  2009.  Circuit  courts,  when  in  session — Try  and  determine  issues  of  law 

and  fact — Habeas  corpus  and  other  remedies 1330 

§  2010.  Commissioner  to  discharge  duties  of  master  in  chancery 1330 

§  2011.  Process  in  chancery  cases  may  be  served  same  as  in  actions  at 

law    1331 

§  2012.  Testimony  of  any  witness  may  be  taken  by  deposition,  when — 
Deposition  may  be  taken  before  any  judge,  etc.,  not  interested 
— Seal — Notice  to  be  given  before  deposition  is  taken — Any 

person  may  be  compelled  to  appear  and  depose 1331 

§  2013.  When  deposition  of  witness  may  be  taken  under  commission — 

W^ritten   interrogatories  may  be  attached   to  commission ....  1333 
§  2014.  Courts  shall  have  power  to  compel  attendance  of  witnesses.  .  .  .1333 
§  2015.  Witness  shall  be  sworn — May  be  examined,  orally — Testimony 
may  be  written  or  taken  stenographically — Deposition  to  be 
transmittt^'d    by    mail    to    the    court — Objections    to    manner 

of  taking  testimony,  how  made 1333 

§  2016.  Testimony  of  witness  to  be  taken   conditionally,  when — When 

testimony  under  this  section  may  be  used 1334 

§  2017.  Parties   interested   in   suits   may   have   testimony  taken   in  any 

manner   1335 

§  2018.  Court  shall  have  power  to  regulate  the  use  of  depositions 1335 

§  2019.  Fees  for  taking  depositions 1335 

§  2020.  Change  of  rules  of  evidence — Complainant  to  introduce  evidence 

as  to  judgment,  etc. — Where  burden  of  proof  to  rest 1336 

§  2021.  Unknown  heirs  may  be  made  defendants — Affidavits  by  com- 
plainants— Order  of  court 1336 

§  2022.  Certificate  to  be  executed — Fee  for  filing — Duty  of  register  of 

deeds    ' 1337 

§  2023.  Eight — Procedure — Settlement  of  evidence  on  appeal 1337 

§  2024.  Defendants,    who    may    be    made,    in    chancery    matters — Real 

estate,  when  subject  matter  is 1339 

§  2025.  Who  may  commence  proceedings — Persons  proceeded  against 
— Unknown  persons,  how  designated — Court  may  require 
further  description    1340 


xlvi  EQUITY  PRACTICE 

MICHIGAN  (Stat.— cont.) 

§  2026.  Defendant  in  action  to  quiet  title — Limitation — Claimants  under 

deceased  persons   1341 

§  2027.  Corporations  or   partnership   associations 1342 

§  2028.  Bill   of   complaint   to    be   sworn   to — Order    for    appearance — 

Description  of  lands   1342 

§  2029.  Subsequent  proceedings — Proviso,  aiipointmeut  of  guardians — 

Reopening  of  case 1343 

§  2030.  Appearance  of  a  co-defendant 1343 

§  2031.  Decrees — Recording  of  decree  affecting  real  estate 1344 

§  2032.  Who  may  have  partition 1344 

§  2033.  Suits,  how  instituted — If  land  is  in  different  counties 1344 

§  2034.  Suit,  who  may  maintain — Undivided  interest 1345 

§  2035.  Bill  to  be  verified,  and  what  to  set  forth 1345 

§  2036.  Who  may  be  made  parties 1346 

§  2037.  Unknown  parties  and  uncertain  interests 1346 

§  2038.  Creditors  having  lien  need  not  be  made  parties,  in  first  instance.  1346 
§  2039.  Transfer   of   lien   on   undivided   interest — When   commissioners 
may    set    apart    portion    of    premises — Transfer    of    lien — 
Premises  to  be  first  charged  with  costs — Other  persons  made 

parties  to  such  proceedings  by  petition  to  the  court 1346 

§  2040.  Creditor  having  specific  lien  may  be  made  a  party 1347 

§  2041.  Subpoena  to  appear  and  answer 1347 

§  2042.  Unknown  and  non-resident  parties,  how  notified 1348 

§  2043.  Order  to  take  bill  as  confessed  against  unknown  parties 1348 

§  2044.  Guardians  for  minors,  etc 1348 

§  2045.  Bond  to  be  given  by  guardian 1349 

§  2046.  On  failure  of  guardian  to  give  bond,  clerk  to  be  appointed.  . .  .1349 

§  2047.  When  issue  of  fact  to  be  tried  by  jury 1349 

§  2048.  Court  may  permit  bill  and  proceedings  to  be  amended 1350 

§  2049.  Eights  of  parties  affected  by  amendment 1350 

§  2050.  Reference  to  take  proof  of  title  of  complainants . .  .  1350 

§  2051.  Rights  of  parties,  how  ascertained,  and  decree  thereon 1350 

§  2052.  Decree  in  case  the  rights  of  some  of  the  parties  do  not  appear.  1351 

§  2053.  Reference  to  inquire  into  situation  of  premises 1351 

§  2054.  When  and  how  commissioners  appointed  to  make  partition.  ..  .1351 

§  2055.  Vacancies    1352 

§  2056.  Oath   of  commissioners    1352 

§  2057.  How  partition  to  be  made 1352 

§  2058.  Report  of  commissioners 1352 

§  2059.  —  All  to  meet  1352 

§  2060.  —  Fees  and  expenses   1353 

§  2061.  Setting  aside  report,  etc 1353 

§  2062.  Decree  on  confirmation  of  report.  ." 1353 

§  2063.  Persons  and  cases  not  affected 1353 

§  2064.  When  court  to  order  sale 13.54 

§  2065.  Partition   and  sale 1354 

§  2066.  Order  to  direct  terms  of  credit,  etc 1355 

§  2067.  Credits,  how  secured — Separate  securities 1355 

§  2068.  To  whom  securities  to  be  delivered 1355 

§  2069.  Complainant  to  amend  his  bill  before  the  order  for  sale 1355 

§  2070.  Certain  moneys  to  be  brought  into  court 1355 

§  2071.  Application  for  moneys  brought  in 1356 

§  2072.  Proceedings  on  application   1356 

§  2073.  Distribution   of  moneys  among  creditors. 1356 

§  2074.  Clerk  to  procure  discharge  of  incumbrances 1357 

§  2075.  Other  parties  not  to  be  delayed 1357 

§  2076.  Sale  of  dower  or  other  life  estate  in  premises 1357 

§  2077.  —  Effect  of  sale   1357 

§  2078.  Payment  to  owner  of  life  estate,  etc.,  with  his  assent 1358 

§  2079.  Proceedings  if  consent  be  not  given 1358 

§  2080.  Proportions  to  be  invested — In  case  of  dower — Estate  for  life.  .1358 

§  2081.  Rights  of  unknown  owners  to  be  protected  by  court 1359 

§  2082.  Notice  of  sale  by  master 1359 


CONTENTS  OF  VOLUME  II  xlvii 

MICHIGAN  (Stat.— cont.) 

§  2083.  How  conducted    1359 

§  2084.  Master  and  guardians  not  to  purchase 1359 

§  2085.  Eeport  of  sale   1359 

§  2086.  Order    for   conveyances 1360 

§  2087.  Conveyances  to  be  recorded,  their  effect 1360 

§  2088.  Effect  of  conveyances  upon  rights  of  creditors 1360 

§  2089.  Costs  and  expenses  of  proceedings 1360 

§  2090.  Distribution  of  proceeds  of  sale  among  parties 1360 

§  2091.  Shares  of  known   infants    1361 

§  2092.  Shares  of  unknown  and  absent  owners 1361 

I  2093.  Tenants  in  dower  or  for  life,  etc 1361 

§  2094.  Security  to  refund   1361 

§  2095.  In  what  names  securities  to  be  taken 1361 

§  2096.  Clerk  to  receive  and  apply  moneys,  and  render  account 1362 

§  2097.  Investment,   how   made,   etc 1362 

§  2098.  Suits   on   securities 1362 

§  2099.  Costs  of  partition,  how  assessed  and  collected 1362 

§  2100.  Sale  of  premises  of  unknown  owner  valid 1363 

§  2101.  Costs  against  complainants  on  dismissal  of  bill,  etc 1363 

§  2102.  Appeal 1363 

§  2103.  Partition  or  sales  of  estates  of  infants  by  guardians 1363 

§  2104.  Eeport  of  guardian  and  order  for  conveyances 1364 

§  2105.  Effect  of  deeds,  infants  deemed  wards  of  court 1364 

§  2106.  If  infant  a  married  woman,  husband  to  be  guardian 1364 

§  2107.  Partition  by  guardians  of  lunatics,  etc 1364 

§  2108.  Eeleases,  when  to  be  authorized 1365 

§  2109.  Effect  of  releases   1365 

§  2110.  Partition  when  state  is  interested 1365 

§  2111.  Service  of  subpoena,  etc.,  on   attorney  general 1365 

§  2112.  Claims  barred  by  statute  of  limitations,  etc 1366 

§  2113.  Compensation  for  inequality  of  partition 1366 

§  2114.  Act  applicable  to  lands  held  by  trustee 1368 

§  2115.  When  courts  may  divide  lands  among  heirs,  etc 1366 

§  2116.  Interest  may  be  set  off  in  a  body  without  subdivision 1366 

§  2117.  Partition  where  original  parties  in  interest  are  fully  known.  .  .  .1367 

§  2118.  Court  may  appoint  a  receiver  in  certain  cases 1367 

§  2119.  Duty  of  court  under  judgment,  in  ease  of  married  women ....  1367 

§  2120.  How  married  women  may  release  interest  in  estate 1368 

§  2121.  Eelease  a  bar    '. 1 368 

EuLES  OF  Court 

§  2122.  Bills  of  complaint    1 368 

§  2123.  Verifying  bills  of  complaint,  etc 1369 

§  2124.  Security  for  costs  by  non-residents 1370 

§  2125.  Process — Form  of  chancery  subpoena — How  served 1370 

§  2126.  Proceedings  following  the  service  of  subpoena 1371 

§  2127.  Extending  time  for  pleading,  etc 1372 

§  2128.  Proceedings  on  default  of  either  party 1372 

§  2129.  Pleas  to  a  bill  and  practice  thereon 1373 

§  2130.  Demurrers   and   practice   thereon 1375 

§  2131.  Answers  and  the  practice  thereon 1375 

§  2132.  Answers  in  the  nature  of  cross-bills  and  the  practice  thereon.  .1376 

§  2133.  Eeplications    1377 

§  2134.  When  cause  is  at  issue 1377 

§  2135.  Proceedings  after  cause  is  at  issue — The  taking  of  testimony, 

etc 1378 

§  2136.  Certain   rules   governing   in    cases   at   law   made   applicable   in 

chancery  causes   1380 

§  2137.  Amendment  of  bill  and  answer  without  leave  of  court 1380 

§  2138.  Practice  on  amendments 1381 

§  2139.  Proceedings  before  commissioners   1382 

§  2140.  Eeports  of  commissioners  and  proceedings  thereon 1382 


xlviii  EQUITY  PRACTICE 

MICHIGAN  (EULEs— cont.) 

§  2141.  Appeals  from  orders  of  commissioners 1383 

§  2142.  Restrictions  of  powers  of  commissioners 1384 

§  2143.  Costs — Solicitors '  fees  taxable,  etc 1385 

§  2144.  Taxation  of   costs    1386 

§  2145.  Enrollment  of  decree,  etc 1386 

§  2146.  Application  for  rehearing  1386 

§  2147.  Bills  of  revivor  and  supplemental  bills 1387 

§  2148.  Bills  of  review 1387 

§  2149.  Practice  peculiar  to  foreclosure  cases 1387 

§  2150.  Practice  peculiar  to  creditors '  bills 1389 

§  2151.  Eeceivers — Their  powers   and  duties — Practice 1390 

§  2152.  Moneys    in    hands    of    register    of   court — How    deposited    and 

drawn     1391 

§  2153.  Security  by  guardian  ad  litem,  etc 1392 

§  2154.  Assignment  by  complainant  of  subject-matter  of  suit — Proceed- 
ings thereon   1392 

§  2155.  General  practice  of  court 1392 

§  2156.  When  rules  to  take  effect 1393 

§  2157.  Appeals — Settlement  of  case 1393 

§  2158.  Common  and  special  order  and  rules 1396 

§  2159.  Notes  of  issue 1397 

§  2160.  Term   calendar — How   made  up 1397 

S  2161.  Motions   and  ])etitions 1397 

§  2162.  Stay  of  proceedings  to  make  motions 1398 

§  2163.  Motions  for  continuance    1399 

§  2164.  Genuineness  of  documents 1399 

§  2165.  Court  may  require  parties,  etc.,  to  testify 1400 

§  2166.  Service   of   papers    1400 

§  2167.  Service  of  papers  by  mail 1400 

§  2168.  Service  where  there  are  several  defendants  or  several  attorneys.  1401 

§  2169.  Service  on  party  prosecuting  or  defending  in  person 1401 

§  2170.  Service  in  exceptional  cases 1401 

§  2171.  Service   on    party    charged    with    contempt    and    on    party    im- 
prisoned      1401 

§  2172.  When  service  required   1402 

§  2173.  How  time  computed  on  service  of  papeis,  etc 1402 

§  2174.  Entitling  papers,  etc 1402 

§  2175.  The    court    files    ■. 1403 

§  2176.  Agreements  to  be  in  writing   1403 

§  2177.  Affidavit  of  genuineness  of  acceptance  of  service 1403 

§  2178.  Depositions   1403 

§  2179.  Compelling  return  of  process 1404 

CHAPTER  XXXVIII 
MISSISSIPPI 

Statutes 

§  2180.  Appeal  from  final  judgments  or  decree 1405 

§  2181.  Appeal  on  overruling  demurrer '. 1405 

§  2182.  Appeal  from  interlocutory  order 1406 

§  2183.  How  appeal  obtained  1406 

§  2184.  The  petition 1406 

§  2185.  Petition  not  necessary  to  the  validity  of  appeal 1406 

§  2186.  Bonds  in  civil  eases  on  appeal  without  supersedeas 1407 

§  2187.  Bond   for   supersedeas 1407 

§  2188.  Appeals  to  be  granted  and  bonds  approved  by  clerk 1408 

§  2189.  Bond  to  be  given  to  perfect  an  appeal 1408 

§  2190.  Duty  of  clerk  when  appeal  is  taken 1408 

§  2191.  Powers  of  the  chancellor r 1409 

§  2192.  The  chancellor  may  try  causes  in  vacation 1409 

§  2193.  Additional  powers  of  chancellor  in  vacation 1409 


CONTENTS  OF  VOLUME  II  xlix 

MISSISSIPPI  (Stat.— cont.) 

§  2194.  Acts  clerk  may  perform  at  any  time 1410 

§  2195.  Monthly  rules,  and  what  then  may  be  done 1410 

§  2196.  All  acts  of  clerk  subject  to  approval  or  disapproval 1411 

§  2197.  Minutes  of  proceedings  in  vacation 1411 

§  2198.  How  such  minutes  preserved  and  approved   1412 

§  2199.  How  approval  of  vacation  orders  shown 1412 

§  2200.  Orders  of  clerk  in  vacation  may  be  suspended 1412 

§  2201.  Bonds  examined  by  chancellor 1412 

§  2202.  How  proceedings  before  clerk  to  be  conducted 1413 

§  2203.  Abstract  of  certain  decrees  furnished  circuit  clerk 1413 

§  2204.  Attachment    against    non-residents 1413 

§  2205.  —  How  effects  or   indebtedness  bound 1413 

§  2206.  —  How  land  levied  on 1414 

§  2207.  —  Writs  of  sequestration 1414 

§  2208.  — Publication  for  defendant  and  his  appearance 1414 

§  2209.  — A  complainant  to  give  security  after  decree,  etc 1415 

§  2210.  Any  other  title  may  be  confirmed 1415 

§  2211.  Eemoving  clouds  upon  titles 1415 

§  2212.  Title  of  complainant  must  be  deraigned;  and  decrees,  in  certain 

cases,   recorded   as   deeds    1416 

§  2213.  May  decree  possession,  rents,  etc 1416 

§  2214.  Creditors  may  attack  fraudulent  conveyances,  etc 1416 

§  2215.  May  summon  all  persons  and  punish  for  contempt 1417 

§  2216.  Issue  may  be  tried  by  a  jury 1418 

§  2217.  Change  of  venue  in  jury  cases  allowed,  etc 1418 

§  2218.  Power  to  punish  for  violation  or  injunction,  etc 1419 

§  2219.  Venue  of  suits 1419 

§  2220.  The  writ  of  sequestration 1419 

§  2221.  —  Affidavit  required 1420 

§  2222.  — Bond  required  of  complainant 1420 

§  2223.  —  What  the  writ  to  contain,  etc 1420 

§2224.  — Complainant  may  bond  the  property  in  certain  cases 1421 

§  2225.  —  How  property  disposed  of  if  not  bonded 1421 

§  2226.  —  Chancellor  or  any  judge  may  order  the  writ  and  fix  amount 

of  bond   1422 

§  2227.  How  unknown  persons  may  be  made  parties 1422 

§  2228.  When  decrees  on  publication  only  are  final 1422 

§  2229.  How  such  rehearing  may  be  obtained 1422 

§2230.  Pleadings  and  practice — Application  of  rules  prescribed 1423 

§  2231.  Mode  of  trial   1423 

§  2232.  Answer  not  required  in  certain  f  ases 1423 

§  2233.  Answer  or  demurrer  may  be  filed ..1424 

§  2234.  Pleadings  to   be   subscribed 1424 

§  2235.  Of  bills  and  petitions 1424 

§  2236.  What  bill  must  contain 1424 

§  2237.  Exhibits  made  part  of  bill 1425 

§  2238.  Exhibits  proved  by  affidavits  or  witnesses 1425 

§  2239.  Demurrers— Form 1425 

§  2240.  Certificate  necessary 1425 

§  2241.  Demurrer  to  be  set  down   1425 

§  2242.  Answers — Must  be  full — Charges  of  bill  not  denied  true 1425 

§  2243.  Answer  under  oath  unless  waived  in  bill — Answer  of  a  corpora- 
tion  1426 

§  2244.  Eule  requiring  two  witnesses  modified 1426 

§  2245.  Answer  may  be  made  a  cross-bill 1426 

§  2246.  Proceedings  to  compel  answer — Defendant  attached 1426 

§  2247.  Proceedings  on  refusal  to  answer 1427 

§  2248.  Before  whom  answ'ers  of  non-residents  may  be  sworn  to 1427 

§  2249.  Eeplication    to    answer    unnecessary 1427 

§  2250.  Plea  set  down  or  replied  to 1427 

§  2251.  Amendments     1427 

§  2252.  When  bill  amended  without  leave 1427 

§  2253.  Defendant  to  answer  amendment  after  notice 1428 


1  EQUITY  PRACTICE 

MISSISSIPPI  (Stat.— eont.) 

§  2254.  How  amendments  made  1428 

§  2255.  Bill  to  make  new  parties  filed  in  vacation 1428 

§  2256.  Multifariousness     1428 

§  2257.  No  objection  at  hearing  for  misjoinder 1429 

§  2258.  When  defendant  shall  plead,  answer,  or  demur,  etc 1429 

§  2259.  Additional  time  to  plead,  answer,  or  demur 1429 

§  2260.  Exceptions   to   bills    or   answers 1429 

§  2261.  When  answer  to  be  taken  as  true 1430 

§  2262.  Guardian  ad  litem 1430 

§  2263.  Xote  of  evidence  made  on  hearing 1430 

§  2264.  Bills  of  exceptions 1430 

§  2265.  Staying  proceedings  on  bill  of  review 1430 

§  2266.  Injunctions;  evidence  of  complainant's  equity  required 1431 

§  2267.  Bond  required  to  stay  proceedings  at  law 1431 

§  2268.  Bond  when  injunction  is  not  to  stay  proceedings  at  law 1431 

§  2269.  Bonds  in  particular  cases 1432 

§  2270.  Bond  not  required  of  state,  county,  etc 1432 

§  2271.  Injunction  dissolved,  unless  bill  filed  by  first  term 1432 

§  2272.  Issuance  of  injunction  on  a  release  of  errors 1432 

§  2273.  Chancellor  may  order  restoration  of  personal  property  levied  on.  1432 
§  2274.  Similar  proceedings  in  case  of  property  seized  under  mortgage, 

etc 1433 

§  2275.  Motions  to  dissolve  injunctions 1433 

§  2276.  Effect  of  exceptions  to  answer  on  motion  to  dissolve 1434 

§  2277.  Affidavits   read   in   evidence 1434 

§  2278.  Effect  of  dissolution  of  injunction  on  the  bill 1434 

§  2279.  Certain  injunction  bond  to  operate  as  a  judgment 1434 

§  2280.  Damages  on  dissolution  of  certain  injunctions 1434 

§  2281.  Suggestion  of  damages  and  decree  therefor 1435 

§  2282.  Eeceivers — Necessity  for  notice  of  appointment 1436 

§  2283.  Complainant   to   gi^  e  bond  before  receiver   appointed  without 

notice    1436 

§  2284.  Eeceivers  may  be  appointed  or  removed  in  vacation 1436 

§  22S5.  Eeceivers  subject  to  orders  of  court,  and  may  apply  therefor  in 

vacation     1436 

§  2286.  Bond  in  lieu  of  receiver 1437 

§  2287.  Bond   of   receiver    1437 

§  2288.  Eeceiver  of  money  paid  into  court 1437 

§  2289.  Eeceiver  of  estate  of  decedent,  minor,  etc- 1438 

§  2290.  Compensation   of   receiver 1438 

§  2291.  New  bond  required  in  certain  cases 143S 

§  2292.  Masters  in  chancery 1438 

§  2293.  Special   commissioners 1439 

§  2294.  Powers  of  masters 1439 

§  2295.  Witnesses  subp.oenaed  by  masters 1439 

I  2296.  Fees  of  masters  for  copies 1439 

§  2297.  Bond  may  be  required  of  master  or  special  commissioner 1439 

§  2298.  Account  ordered  in  vacation  or  term-time 1440 

§  2299.  Proceedings  without  notice  in  certain  cases 1440 

§  2300.  Decree  for  balance  after  sale  of  property 1440 

§  2301.  Decree  to  operate  as  judgment  of  circuit  court 1440 

§  2302.  Decree  to  operate  as  a  conveyance 1440 

§  2303.  Eights  of  infants  saved 1441 

§  2304.  Sheriff  to  execute  decrees ;  clerk  to  issue  process 1441 

I  2305.  Fieri  facias  or  garnishment  on  decrees  for  money 1441 

§  2306.  Sales  under  decrees 1441 

§  2307.  Bond  to  prevent  confirmation 1442 

§  2308.  Court  may  fix  terms  of  sale 1442 

§  2309.  Lien  on  land  sold  on  credit 1442 

§  2310.  Person  making  sale  not  to  purchase 1443 

§  2311.  Hour  and  adjournment  of  sales 1443 

§  2312.  Eeport  of  sale  of  land 1443 


CONTENTS  OF  VOLUME  II  li 

MISSISSIPPI  (Stat.— eont.) 

§  2313.  On  death  of  executor,  or  other  person  authorized,  who  shall  sell 

or  convey    1443 

§  2314.  Sales  or  leases  may  be  reported  and  confirmed  in  vacation.  .  .  .1444 
§  2315.  Provisions  applicable  to  all  sales  made  by  order  or  decree  of 

the  court 1444 

§  2316.  Writs  grantable  by  supreme  and  circuit  judges  and  chancellors.  .1444 

§  2317.  Officer  to  restore  money  on  injunction  of  execution 1445 

§  2318.  Costs  discretionary  in  chancery 1445 

§  2319.  Depositions  de  bene  esse  may  be  taken  on  filing  bill  in  chancery.  1445 

§  2320.  "When  depositions  in  chancery  may  be  taken  generally 1446 

§  2321.  Witnesses  examined  in  open  court 1446 

§  2322.  Oral    evidence   in   chancery   to   be   reduced    to   writing,   when — 

Bills  of  exceptions 1446 

§  2323.  Partition  by  agreement  and  by  arbitration 1447 

§  2324.  Partition  by  decree  of  chancery  court 1447 

§  2325.  Who  may  institute  proceedings  for  partition 1447 

§  2326.  Proceedings  same  as  in  other  suits 1448 

§  2327.  Court  may  order  sale  in  first  instance 1448 

§  2328.  Controverted  title  and  all  equities  disposed  of 1448 

§  2329.  Partition  without  commissioners — Owelty 1448 

§  2330.  Decree  appointing  eommitsioners 1449 

§  2331.  Oath   of   commissioners 1449 

§  2332.  Survey  made  and  division  into  shares 1449 

§  2333.  Allotment  of  shares 1450 

§  2334.  Assignment  of  shares  and  owelty 1450 

§  2335.  Report    of    commissioners 1450 

§  2336.  Allowance  to  commissioners 1451 

§  2337.  Owelty   a    lien 1451 

§  2338.  Land  sold  when  not  capable  of  division 1451 

§  2339.  Final  decree  and  doci'ee  of  confirmation 1451 

§  2340.  Decrees  to  be  recorded 1451 

§  2341.  Party  evicted  to  have  partiti-on  of  residue 1452 

§  2342.  Lien  created  by  party  binding  on  his  share 1452 

§  2343.  Paramount  rights   not   affected 1452 

§  2344.  Certain  absent  parties  to  have  new  partition 1452 

§  2345.  Solicitor's  fee  allowed   in  certain  cases 1453 

§  2346.  Partition  of  personalty 1453 

§  2347.  Personal  property  by  justice  of  the  peace 1454 

§  2348.  —  By   whom   partition   made,    if   ordered 1454 

§  2349.  —  Appeal  to  the  circuit  court 1454 

§  2350.  —  Writ  to   seize  property,   and   proceedings 1454 

§  2351.  —  Sale — How  made  when  ordered 1455 


CHAPTER  XXXIX 
NEW  HAMPSHIRE 

Statutes 

§  2352.  Suits  in  equity,  etc.,  to  be  tried  by  court,  when  and  how 1456 

§  2353.  Decision  to  be  in  writing,  etc 1456 

§  2354.  Equity  powers 1456 

§  2355.  When  disputed  title  to  realty  may  be  settled 1457 

§  2356.  Discovery  when  goods  withheld 1457 

§  2357.  Creditor's  bill— When   lies 1457 

§  2358.  — Not  in  case  of  property  exempt  from  attachment,  etc 1457 

§  2359.  Lien — How  created — If   persoualtv  attached 1458 

§  2360.  Lien— If   realty   attached '. 1458 

§  2361.  Rig-ht  to  attachment  or  trustee  process 1458 

§  2.362.  —  Form   1458 

§  2363.  —  Execution   of   writ 1458 

§  2364.  —  Filing   of   writ 1459 


lii  EQUITY  PRACTICE 

XEW  HAMPSHIBE  (Stat.— cont) 

I  2365.  Power  to  make  Eecessarr  orders 1459 

§  2366.  Power  to  discharge  or  modify  liens 1459 

5  2367.  Counties  in  which  eaose  may  be  heard 1459 

S  236S.  Appointment  of  commissioners,  masters,  receirers,  etc. — Powers 

of  single  justice 1459 

§  2369.  Transmission  of  decrees,  orders,  etc.,  to  clerk 1460 

f  2370.  Powers  over  interlocutory  decrees  and  orders 1460 

§  2371.  "When  may  be  transferred 1460 

f  2372.  Jury    trials     1460 

BrXES  OF  COUBT 

S  2373.  Docket  entries  1460 

§  2374.  Use  of  dep<»itions   1461 

f  2375.  Xotic-e  of  taking  depositions 1461 

f  2376.  —  Persons  entitled   1461 

§  2377.  Depositions — How    taken 1461 

I  2378.  —  Commission,  when  may  be  issued 1462 

§  2379.  —  Cwtificate  when  taken"  abroad 1462 

I  2380,  —  Exceptions— Waiver    1462 

f  2381.  Continnance — Absence  of  counsel 1463 

§  23S2.  —  Absence  of  witness 1463 

f  23S3.  —  Compliance  with  order  for  notice 1463 

§  23S4.  -Xotiee — Publication    1463 

I  23S5.  Disqualification  of  attorney  testifying  in  cause 1463 

§  23S6.  Attorneys — ^When  not  to  be  compelled  to  testify 1464 

5  23S7.  —  Number  permitted  to  examine  witnesses 1464 

§  23SS.  Order  of  proof   1464 

I  23S9.  Motion  for  new  trial — Time  for  motion 1464 

i  2390.  Instructions — Bequests     1465 

§  2391.  Transfer    of    questions    of    law — ^Piling   and    transmission    of 

papers 1465 

I  2392.  —  Advancing  expense  of  copies — Taxation  as  costs 1465 

I  2393.  Questions  arising  before  auditors — Separate  reports 1465 

§  2394.  Beferenee — Notice    of    hearing — Commission 1466 

5  2395.  —  Taking   out   rule — Beport  ^. 1466 

5  2396.  — Duty  of  clerk  as  to  furnishing  copies  of  rule 1466 

I  2397.  —  Proceedings  on  failure  to  produce  accounts,  produce  books 

or  answer    1466 

5  239S.  —  Practice    1467 

f  2399.  Name  of  countv  to  appear  in  proceedings 1467 

§  2400.  BiUs— Form    .'. 1467 

f  2401.  Conciseness — Writing  not  to  be  set  forth  at  length 146S 

§  2402.  Answers — Form    1468 

S  2403.  —  Failure  to  deny  as  an  admission 1468 

5  2404.  —  Necessity  for  verification   1468 

I  2405.  Demurrer   or   plea    1468 

$  2406.  Bills — When  may  be  issued — Subpoenas 1468 

§  2407.  Subpoenas — Service    1469 

S  2408.  —  Service  as  notice  of  suit 1469 

S  2409.  Attested  copies  of  bills,  answers  and  depositions 1469 

S  2410.  Bule   to    answer    1469 

i  2411.  Failure  to  enter  appearance — Decree  pro  confesso 1469 

{  2412.  Proceedings  on  answer   1470 

I  2413.  Amendments     1470 

I  2414.  Answer  or  plea  to  amended  bill — Time  for  notice  to  take  deposi- 
tions      1470 

§  2415.  Exceptions    1470 

$  2416.  —  Answer  after  exceptions 1471 

I  2417.  Beplications — Form    1471 

$  2418.  Term  of  hearing — Continuance 1471 

§  2419.  Copies  to  be  furnished   1471 

5  2420.  —  Hearing  on  bill  and  d«nurreT 1471 


CONTENTS  OF  VOLUME  II  liii 

NEW  HAMPSHIRE  (EuLES— cont.) 

§  2421.  Abatements     '.  1471 

§  2422.  Security  for  costs   1472 

§  2423.  Interlocutory  orders   1472 

§2424.  Attachments  for  contempt — Issuance  in  vacation — Arrest 1472 

§  2425.  Injunctions — Issuance  in  vacation    1473 

§  2426.  —  Continuance  in  force  without  order 1473 

§  2427.  —  Granting  by  single  justice  in  vacation 1473 

§  2428.  —  May  be  granted  by  order  instead  of  writ 1473 

§  2429.  Receivers     1473 

§  2430.  —  Inventories — Accounts   1474 


CHAPTER  XL 
NEW  JERSEY 

Statutes 

§  2431.  Terms — When  and  where  held — Continuance 1475 

§  2432.  Court  always  open  for  certain  purposes 1475 

§  2433.  Necessity    for    filing   bill — Endorsement   of   writ    or    process — 

Requisites — Notice 1475 

§  2434.  Foreclosure  of  mortgages — How  third  persons  made  parties.  .  .1476 

§  2435.  Service   of   process — Return 1476 

§  2436.  —  On  corporation    1477 

§  2437.  Written  appearance — Effect   1477 

§  2438.  Ne  exeat — Requisites   to   issuance — Indorsements 1477 

§  2439.  Bond  for  costs — Cash  deposit 1477 

§  2440.  Description  of  married  woman  whose  Christian  name  is  unknown.  1478 

§  2441.  Persons  believed  to  be  dead  and  their  heirs,  etc.,  as  parties 1478 

§2442.  — Binding  effect   of  proceedings — Proof — Costs — Relief 1479 

§  2443.  Persons  deemed — Notice   1480 

§  2444.  —  How  notice  served — Solicitor 's  fee 1480 

§  2445.  Non-appearance — Decree  pro  confesso   1481 

§  2446.  Binding    effect    of    decree — Proof    of    non-service    of    notice — 

Security 1481 

§  2447.  Ex  parte  affidavits — Before  whom  taken 1481 

§  2448.  When  bond  required  of  complainant — Sequestration 1482 

§  2449.  Petition  and  appearance  after  decree — Bill  for  accounting — Con- 
firmation of  decree   1482 

§  2450.  Prayer    for    answer    without   oath — Interrogatories — Effect    of 

failure  to  answer    1483 

§  2451.  Plea — Demurrer — Answer — Time    for   filing 1484 

§  2452.  Extension  on  overruling  frivolous  demurrer 1484 

§  2453.  Affidavit  that  plea  or  demurrer  is  not  interposed  for  delay — 

Certificate  of  counsel   1484 

§  2454.  Decree  pro  confesso  for  failure  to  plead,  demur  or  answer — 
Examination    of    complainant — Hearing    testimony — Stay    of 

proceedings — Opening  decree    1485 

§  2455.  Reply  to  plea — Demurrer  to  be  disposed  of  before  proceeding 
on  ansAver — Answer  on  overruling  demurrer — Costs  on  de- 
murrer      1485 

§  2456.  Exceptions  or  replication  to  be  filed — Setting  cause  for  hearing 

— Dismissal — Issues    1486 

§2457.  Notice  for  decision  on  exceptions — Hearing — Reference — Costs.  1486 
§  2458.  Insufficiency    of    answer — Further    answers — Costs    where    held 

insufficient — Decree  pro  confesso   1486 

§  2459.  Ch-oss-bills — Answers     I486 

§2460.  New  parties — Supplemental  bill  unnecessary  when — Petition.  .  1487 

§  2461.  —  When  may  be  made  parties 1487 

§2462.  "When  answer  to  be  taken  as  true — Necessity  for  evidence.  .  .  .1488 
§2463.  Interrogatories  to  complainant — Answers — Failure  to  answer..  1488 
§  2464.  Testimony  of  witnesses — How  taken— Fees 1488 


liv  EQUITY  PRACTICE 

NEW  JEESEY  (Stat.— oont.) 

§2465.  Printing   of   pleadings    and   evidence — Costs 1489 

§  24:66.  When  to  be  set  down  for  hearing — Dismissal — Costs 1489 

§  2467.  Hearings  in  absence  of  party — Decree 1489 

§  2468.  Dismissal  after  hearing  commenced — Showing  of  good  cause — 

Failure  of  party  to  prosecute  cause 14S9 

§  2469.  Papers  in  cause  to  be  used  at  argument  or  hearing 1490 

§  2470.  Enrollment   of   proceedings   in   cause — Signing — Decree   not  to 

contain    recitals    of    pleadings 1490 

§  2471.  Enrollment  unnecessary  on  dismissal  by  consent 1490 

§  2472.  Duty  of  clerk  as  to  enrollment— Tim^Fees 1491 

§  2473.  By  whom  enrollment  to  be  made — Successor  of  clerk 1491 

§2474.  Signature  to  enrollment — Successor  of  chancellor 1491 

§  2475.  Decree   effective   as   iudgment   at   law — Decrees   or   orders   for 

money  execution — Liens  on  land — Filing  of  abstract 1491 

§2476.  Decree  for  conveyance  of  lands  etfeetive  as  conveyance 1492 

§  2477.  Sequestration — Writ  of  fieri  facias — Issuance  of  capias  ad  satis- 
faciendum— Enforcement   of    decree   by   in  jimction 1493 

§  2478.  Writ  of  fieri  facias — From  what  time  binding 1493 

§  2479.  Execution  of  writs,  orders,  etc.,  on  death  of  oincer 1493 

§  2480.  Sale— Writ  of  fieri   facias 1494 

§  2481.  Deeds— Pavment    of    proceeds 1495 

§  2482.  Writ    of    supersedeas 1495 

§  24S3.  Sale  when  whole  sum  of  mortgage  not  due 1495 

§  2484.  Entry  of  satisfaction  of   decree 1496 

§  2485.  Owner  of  unrecorded  lien  bound  by  decree — ^How  made  party.  .1497 

§  2486.  Fees   in   certain    cases 1497 

§  2487.  Allowance  of  gross  amount  in  lien  of  dower  or  other  estate,  by 
consent — Proceedings   where   consent   not    given — Investment 

of  proceeds  of  sale 1498 

§  2488.  Set-offs    1498 

§  2489.  Sale  when  property  liable  to  deteriorate 1498 

§  2490.  Surplus  when  mortgagor  deceased 1499 

§  2491.  Orders  and  decrees  pending  hearing 1499 

§  2492.  Proviso    1500 

§  2493.  Proceedings    against    absent,    concealed,   unknown    or   deceased 

defendants — Unknown    heirs 1-500 

§2494.  — Rules  and  practice  governing — Sale'of  dower  and  curtesy.  .1502 

§  2495.  —  Effect   of    decree ".  . .  1502 

§  2496.  Stay  of  proceedings  at  law^Deposit 1-503 

§  2497.  —  Mixed  actions — Deposit   or   security 1503 

§  2498.  —  Tnsufiiciency  of  security — Ailditional  security 1503 

§  2499.  —  Reference   to   determine  sufficiency  of  securitv 1504 

§  2500.  —  Before    verdict— AfSdavit    '. 1504 

§  2501.  Attachment  on  disobedience  of  injunction — Contempt — Punish- 
ment      1504 

§  2502.  Discovery — When  lies 1504 

§  2503.  — Power  to  compel — Costs  not  allowed  in  certain  cases 1505 

§  2.504.  — Verification  of  bill — Order  to  debtor  to  appear 1505 

§  2505.  Order   forbidding   payment   of  debt   or   transfer   of  money  or 

property    1-505 

§  2506.  Examination  of  debtor  and  witnesses — Anpointment  of  receiver 

pendente  lite — Authority  and  powers  of  receiver 1506 

§  2507.  Depositions — Right  to  use  on  final  hearing — Notice 1506 

§  2508.  Consent  rules — Entry   T , 1507 

§  2509.  Amendments — Costs  and  terms 1507 

§  2510.  Pleadings  and  decrees — Xotice  of  filing  and  signinsr 1507 

§  2511.  Matters  of  law — Certification  to  supreme  court — .Jury  trial.  ..  -1507 

§  1512.  Fees  of  masters  for  advisine  with  chancellor 1507 

§  2513.  Deposit  and  investment  of  moneys  brought  into  court 1508 

§2514.  — How  to  be  invented — Apportionment  of  interest 1-508 

§  251-5.  —  Appointment  of  person  to   supervise — Compensation 1509 

§  2516-  Contempt  to  enforce  process — Fine  and  commitment 1-509 

§  2517.  Costs — Discretion  as  to  award — How  payment  enforced 1509 


CONTENTS  OF  VOLUME  II  Iv 

NEW  JEESEY  (Stat.— cont.) 

§  2518.  Certain  proceedings  al)olished 1509 

§  2519.  Certain  rules,  orders,  decrees  and  reports  not  to  be  registered — 

Effect  of  filing 1510 

§  2520.  Chancellor  to  make  rules 1510 

§  2521.  Issue  of  execution — Necessity  for  revival 1510 

§  2522.  Disability    or    absence    of    chancellor — Powers    and    duties    of 

master    1511 

§  2523.  Counsel  fees — Taxation  as  costs — Fees  in  foreclosure  proceed- 
ings     1511 

§  2524.  Fees  for  searches — Foreclosure — Partition 1511 

§  2525.  Sale  of  lands — Application  of  surplus  to  payment  of  judgments.  1512 

§  2526.  —  Report  of  officer — Confirmation 1512 

§  2527.  Powers    and    duties — Reference 1513 

§  2528.  Reference — Taking  evidence — Settlement  and  signing  of  report.  1513 
§2529.  —Employment  of  stenographers — Expense — Apportionment.  .  .1514 

§  2530.  Districts — Time  and  place  of  sittings — Rules 1514 

§  2531.  Power  to  punish  for  contempt 1514 

§  2532.  Reference    1515 

§  2533.  Taking   of    testimony — Reports 1515 

§  2534.  Stenographers — Employment — Apportionment   of   expense 1515 

§  2535.  Determination    of   masters   to   whom   reference   to   be   made — 

Compensation — Rules    1515 

§  2536.  Who  may  appeal — Time 1516 

§  2537.  Effect   of  appeal   on   injunction 1516 

§  2538.  —  Not  to  continue  injunction  after  dissolution 1516 

§  2539.  Appeal   from   adjudication   of   contempt 1517 

§  2540.  Reasons  assigned  for  decree  to  be  submitted  in  writing 1517 

§  2541.  Transmission  of  papers  to  lower  court 1517 

§  2542.  Continuing  injunction   in  force  after  vacation  or  dissolution — 

Stay  of  proceedings 1517 

§  2543.  Death  of  party  not  to  abate  suit '. .  .1518 

§  2544.  Death  of  one  of  several  parties — Procedure  by  survivors — Repre- 
sentatives— Order   to   revive — Amendments 1518 

§  2545.  Death  of  sole  plaintiff — Substitution  of  representative — Amend- 
ments     1520 

§  2546.  Death    of    sole    defendant — Representative    as    party — Amend- 
ments     ". 1520 

§  2547.  Effect  of  failure  to  revive  on  death  of  sole  plaintiff  or  defend- 
ant     1521 

§  2548.  Bill  of  revivor  1521 

§  2549.  Death  of  receiver  not  to  abate  action 1522 

§  2550.  Termination  of  limited  administration  not  to  abate  suit 1522 

§  2551.  When  may  be  taken   de  bene  esse — Notice 1523 

§  2552.  Subpoena — Compensation     1523 

§2553.  Oath  of  witness — Retention  of  deposition — Certificate 1523 

§  2554.  Oath  of  officer  as  to  sealing 1524 

§  2555.  Examination    of    parties — Order 1524 

§  2556.  Commission  to  examine  non-resident  witness  de  bene  esse 1524 

§  2557.  —  Procedure     1525 

§  2,558.  Notice  of   application    1525 

§  2559.  —  When  shorter  notice  suffices    1525 

§  2560.  Oath  of  commissioners  . 1526 

§  2561.  Examination — To  be  reduced  to  writing  and  signed 1526 

§  2562.  Examination  to  be  annexed  to  commission — Sealing — Mailing — 

Opening — Indorsing — Filing   1526 

§  2563.  Affidavit  where  first  received  by  party  or  his  attorney 1527 

§  2564.  Transmission  where  taken  in  foreign  state  or  nation 1527 

§  2565.  Taking  testimony  of  foreign  witness  without  commission 1528 

§  2566.  Depositions  of  non-resident  parties 1529 

§  2567.  Proceedings  to  which  act  applies 1529 

§  2568.  Taking   stenographically    1529 

§  2569.  Documentary  evidence   1530 


M  BQUITY  PRACTICE 

NEW  JERSEY  (Stax.— cant.) 

S3570L  Tnaaussim  to  eirenit  cognt  vfaexe  taken  in  eanse  jtenifng 

a  anqprene  eoait 1S30 

S  237L.  DepoiatAuaB  as  evidtmee 1-5?^ 

3572.  OlgeetiaBB  and  exreptiaBs  

2373.  'Espaaea — Taxng  as  eaets 

^74.  Bi^  to  copifs 

2S73.  TaAxBg  ont;  eammis^fm  aot  to  staj  proeeedii^ 

25761  Tjpewiittea  tmisexipfs '. 

2577.  Abeast  nitiiesses  or  partaes l-5.?.l 

257&  Stipabtioft— Procedni«    ..  '-':2 

2579L  Wfcen  laflier  party  M^  ter:^- ;— - 
lie  read 

2580.  Who  mMj  take  depostiaB. 

2581.  DeposHufDiis  swujutb  fa>  sld <*  - ._      _  —  .'.'i.  .i   ^zj  n—^-i  —  -  - 

2582.  Oath  of  per?-    ::z  1:^54 

2583.  Taken  atem'C  r : ;.  - 1.  ;/ ;  -  15-34 

2584.  Docm^Btarr  1534 

2585l  Tmami    Ife:  :  .^       l  — :    :^ra    day    of 

proee^    .  1535 

2586.  CxaaeB  trat? :   : :    .  :        :  —  1535 

2587.  Wkea  txai^r:   -iir 1535 

2588.  Boles   1535 

2589.  AppeilaiiaB  1535 

259a  SatmEaetior  1536 

2591.  Sale  of  iiKl  : 1337 

25^.  Poweisof  '  S 

S2593.  PaiymeDt  ©r  '9 


{  2595.  Sale  of  elates  by  doirer  and  curtesy 

S  2596.  Order  for  payment  of  eostB  and  expenses 

~  2997.  U^MHS  as  parties — Effect  of  decree  am  exMing  liems 1:1. 

299&  JjieBS  os  unffiiided  iatenst  of  party 1540 

2599.  Wbo  maj  be  mode  parties 154^0 

2600L  AdadttiBg  creffitots  baving  Yaaa  as  parties 1540 

2601.  Pajiroemt  off  TTn???^  into  eoort  ia  ecrtain  cases 1540 

2602.  Pr:<:t-e:  r r-  -^9  or  more  parties  leqaest  to  bidd  diare 

;-        rr  1541 

26Q3w  F  :' -  !e  if  indoate  rigbt  of  dower  i8srid.l541 

26IML  F :  TireHuaptiyrfy  dead — Uakaowa  beirs 

1        r  ->r^    1542 

2605l  If  partititm  irapracti  "•?  to  paitsne — Beal  estate  sold.  .1543 

2606.  ffi^  to  aarialtaia  ML'.  -^r— Bcqaisites  of  bill 1543 

2607.  Tideis  to  issne  wit>  1544 

2608.  Decree  for  costs  not  ~  Bef^idaat  in  eeriafai  eases.  1543 

2609.  Answer  of  def^ndaor:  est 1545 

2610.  Issoes  of  law — ^Xew  :       —  :.ation  of  daims 1545 

2611.  Decree — Oonelu!d«ene^ — M'TiIcts     aod     pasons     non     eonpos 

Mieatis   I 1546 

2612.  Haeeof  trial  of  issmes  of  law 1546 

2613L  Salt  bjy  dedicator  after  comvyance 1546 

2614.  Senrice  of  pnieeaB  in  case  of  absent  defendants 1547 

2615.  Procednre  in  cases  of  ■"»«■;:  defendants — ^Xotiife  mbere  no 

appearance — Pexsms  bound  by  decrees 1547 

2616L  Proceeffings  to  qoiet  tifib  to  sofamerged  lands 1549 

2617.  Pioccedingjs  by  itanaindeman 1550 

2616.  — TsAet    1550 

2619.  — Decrees  pro  confcseo — Gd^bs 1551 

2620.  — Answeis  dainung  interest 1^1 

2621.  — Issnes  of  law — Detemiiination 1551 

2622. — DeerccB    Minora  and  ineompebeatB 1592 

2623.  Proceedings  to  ddbenaine  eristence  and  validity  of  eoTeaantB.  .1552 

2624.  — TWa*    1553 


CONTENTS  OF  VOLUME  II  Ivii 

NEW  JEESEY  (Stat.— eont.) 

§  2625.  —  Decrees   pro    conf esso — Costs — Determination 1553 

§  2626.  —  Answer  claiming  existence  of  covenants 1554 

§  2627.  —  Issues  of  law — New  trial — Determination 1554 

§  2628.  —  Decrees   conclusive — Infants    and    incompetents 1554 

§  2629.  Notice  of  sale  posted — Advertised  in  two  newspapers 1555 

§  2630.  Publication   in   German   papers 1556 

§  2631.  Adjournment  of  .sales 1556 

§  2632.  —  Powers  of  master    1556 

§  2633.  Public  or  private  sale — Terms — Confirmation 1556 

§  2634.  Application  of  act   1557 

§  2635.  Section    2629    Modified    1557 

§  2636.  Lost   deeds    1557 

Rules  of  Coukt 

§  2637.  Eegular   terms — Hearing  on   contested   motions 1558 

§  2638.  Order  of  hearing  causes 1558 

§  2639.  Assignment  of  day   for  final  hearing 1559 

§  2640.  When  causes  to  be  set  down  for  hearing — Priority 1559 

§  2641.  What  are  motion-days 1559 

§  2642.  Motions  to  be  made  on  motion-days 1560 

§  2643.  Preference     1560 

§  2644.  Opening  and  closing  arguments   1560 

§  2645.  Abstract  of  pleadings  and   points 1561 

§  2646.  Causes  not  heard  unless  set  down  at  regular  term 1561 

§  2647.  When  cause  to  be  noticed  for  hearing 1561 

§  2648.  Notices— Service    1561 

§  2649.  Exceptions  to   master 's   report — Hearing 1561 

§  2650.  Issue  on  plea — Argument   1561 

§  2651.  Dismissal  after  issue  or  proofs — Notice  and  motion — When  de- 
fendant may  notice  cause  for  argument 1562 

§  2652.  Dismissal  after  hearing  commenced — Failure  of  complainant  to 

proceed    1562 

§  26.53.  Hearing  after  equities  settled  by  interlocutory  decree 1562 

§  2654.  Submission  without  argument 1563 

§  2655.  May  be  taken  in  vacation 1563 

§  2656.  Common  and  special  rules — What  are — Entry 1563 

§  2657.  Service  of  notices,  motions,  summonses  and  orders 1564 

§  2658.  Eeferenee    in    foreclosure    proceedings — Report — Affidavit    of 

amount   due    1564 

§  26.59.  Reference  on  decree  pro  confesso — Notice  unnecessary — Report.  1564 

§  2660.  —  Answers  by  other  encumbrancers — Report — Exceptions 1565 

§  2661.  —  Notice  for  report  on  encumbrance    1565 

§  2662.  —  Controversies  between   defendants 1566 

§  2663.  Notice  of  orders  nisi  to  confirm  reports 1.566 

§  2664.  Orders  to  produce  documents,  etc. — Notice  of  subsequent  pro- 
ceedings      1566 

§  2665.  Failure  to  take  decree  pro  confesso  within  four  months — Service 

of  order   1566 

§  2666.  Encumbrancers  as  parties — Answers — Failure  of  complainant  to 

proceed 1567 

§  2667.  Reference  without  setting  cause  down  for  hearing  in  partition 

and  foreclosure  proceedings  in  certain  cases 1567 

§  2668.  Dismissal   for  want   of  prosecution 1568 

§  2669.  Order    for    inspection — ADplieation 1568 

§  2670.  Hearing   of   petition — Affidavits — Examination 1568 

§  2671.  Duty  as  to  accounts  of  funds  or  investments 1568 

§  2672.  Deposit  of  funds 1568 

§  2673.  Fees — Duty  as  to  payment   1569 

§  2674.  Enrollment  of  proceedings 1569 

§  2675.  Dockets    1569 

§  2676.  Unsigned  orders — Nunc  pro  tunc  orders 1569 

§  2677.  Oath     1570 


Iviii  EQUITY  PRACTICE 

NEW  JEESEY  (Eules— cont.) 

§  2678.  Assignment  of  time  and  place  for  hearing — Summons  to  appear 

— Service — Proceedings  on   failure  to  appear 1570 

§  2679.  Examination   of   witnesses — Expense    1570 

§2680.  Special  masters — When  reference  to  be  made  to — Nomination.  1571 

§  2681.  Disqualification  of  master  to  sell 1571 

§  2682.  Fees   of  master    1571 

§  2683.  Eequisites  of  pleadings  and  other  papers — Endorsement 1572 

§  2684.  Eecitals  of  documents   1572 

§  2685.  Foreclosure  bills — Eecitals  of  bond  or  mortgage 1572 

§  2686.  Name  of  parties  or  solicitors  and  residence  to  be  appended — 

Sufficiency  of  service 1573 

§  2687.  Insertion  of  names  of  defendants  in  subpoena 1573 

§  2688.  Copies  of  tickets  to  be  annexed  to  subpoena 1573 

§  2689.  Order    to    appear    1573 

§  2690.  Proceedings  where  husband  served  and  wife  absent 1574 

§  2691.  Publication  until   after  return  day  without  special  order  pro- 
hibited    1574 

§  2692.  Publication  or  service  of  notice 1574 

§  2693.  Eequisites  of  notice   1574 

§  2694.  Inquiry  as  to  address  of  absent  defendant 1575 

§  2695.  Eequisites  to  decree  pro  confesso  against  absent  defendant 1576 

§  2696.  Preceding  rules  to  apply  to  all  proceedings  by  petition 1577 

§  2697.  Persons  authorized  to  administer  oath 1577 

§  2698.  Eight  of  infant  to  defend — Petition  for  guardian 1577 

§  2699.  Guardian  for  infant  defendant  on  application  of  complainant.  .1578 

§  2700.  —  In  suits  for  satisfaction  of  mortgages 1578 

§  2701.  Eight   to   amend — Before   subpoena — After   subpoena 1579 

§  2702.  Amendment  of  bill  after  exceptions  to  answer — After  pica  or 

demurrer    1580 

§2703.  Costs   where  amendment  requires   further   answer 1580 

§  2704.  Amendments  after  appearance  by  defendant 1580 

§  2705.  Amendment  after  demurrer  not  going  to  ecjuity  of  bill 1580 

§  2706.  Alterations  not  to  be  made  on  original  bill  on  amendment 1580 

§  2707.  Exceptions  on  ground  of  impertinence,  scandal,  or  insufficiency 

— How  taken   1581 

§  2708.  Motion    for    decision    on    exceptions — Answer    to    exceptions — 

Amendments     1581 

§2709.  Notice  of  answer  to  exceptions — Amendment  of  bill 1581 

§  2710.  Motion  for  decision  on  unanswered  exceptions 1582 

§  2711.  Exceptions  for  scandal  or  impertinence — How  taken 1582 

§  2712.  Filing     and     service — Answer — Exceptions — Eoport — Appeal — 

Costs    1582 

§  2713.  Taking  of  testimony — Notice 1583 

§  2714.  Depositions — Agreement   on   examiner 1583 

§  2715.  Disqualification   of   examiner 1583 

§  2716.  When  complainant  to  begin  taking  of  testimony 1583 

§  2717.  When  defendant  to  begin  taking  of  testimony 1583 

§  2718.  Adjournment — Any    examiner    may    take    testimony — Only    one 

examination  to  proceed  at  same  time  except  on  commission.  .1584 

§  2719.  Eebutting  or  counter  rebutting  testimony 1584 

§  2720.  Adjournment — Notice   unnecessary 1584 

§  2721.  Extension   of   time 1584 

§  2722.  —  Written  consent  or  order  necessary 1585 

§  2723.  Legal   holidays,   etc.,  not   computed 1585 

§  2724.  Examination  of  party  in  certain  cases 1585 

§  2725.  Exhibits — Inspection  and  custody — Copies 1585 

§  2726.  Taking  of  depositions — ^lethod  and  form 1585 

§  2727.  Taking  of  testimony  when  issue  joined  on  plea 1586 

§  2728.  Duties  of  examiner  as  to  testimony  taken 1586 

§  2729.  —  Transmission  and   filing 1587 

§  2730.  Subpoena  to  witnesses — Service 1587 

§  2731.  Documentary  evidence  not  presented  before  examiner  not  con- 
sidered      1587 


CONTENTS  OF  VOLUME  II  lix 

NEW  JEESEY  (Rules— con t.) 

§  2732.  Application   for   commission — Notice 1588 

§  2733.  Joining  in  commission — Notice — Appointment  of  commissioners 

— Delay  in  suing  out — Order  to  fix  time  for  return 1588 

§  2734.  Names  of  witnesses  to  be  inserted — Interrogatories  and  cross- 

interrogatoi ies    1588 

§  2735.  When  to  be  printed— Exhibits   1589 

§2736.  Application   for   order  for  printing — Expense — Requisites 1589 

§  2737.  Enrollment    1590 

§  2738.  Objections  to   order  or   decree — Filing ]590 

§  2739.  Award  of  costs— Objection  1590 

§  2740.  Costs  for  setting  down  matters  for  hearing 1590 

§  2741.  Failure   to   move   after   notice 1590 

§  2742.  Failure  to  bring  matter  on  for  hearing  after  notice 1591 

§  2743.  Where  hearing  or  argument   ordered   off 1591 

§2744.  Amendments  or  motions  due  to  party's  own  fault — Success  on 

motion    1591 

§  2745.  Counsel  fee  for  attendance  on  master  or  examiner 1591 

§  2746.  Division  of  fees  between  examiner  and  stenographer — Testimony 

taken  before  vice  chancellor  or  advisory  master 1591 

§  2747.  Mortgage  ca?es — Proceedings  at  law  on  bond 1592 

§  2748.  Service  of  sub]ioena  to  answer — Mileage  of  clerk 1592 

§  2749.  Drawing  or  acknowledging  deed  by  guardian 1592 

§  2750.  Partition   and   foreclosure   suits — Searches 1592 

§  2751.  Search  fees  not  allowed  in  certain  cases 1593 

§  2752.  Issuance  on  cost  allowances   1593 

§  2753.  To  be  directed  to  sheriff 1593 

§  2754.  Issuance    for    deficiency — Subrogation 1593 

§  2755.  Return  of  execution   1594 

§  2756.  Not  to  issue  within  ten  days  of  decree 1594 

§  2757.  Verification     1594 

§  2758.  Order  to  s-how  cause  to  be  issued  before  staying  public  work.  .  .  .1594 
§2759.  Petition — To  whom  presented — Anplieation  for  dissolution.  ...  1594 

§  2760.  Order   to   show   cause — Service — Hearing 1595 

§  2761.  Motion   to   dissolve   before   answer 1595 

§  2762.  Motion  to  disi-olve  on  answer 1596 

§  2763.  Cross-examination  of  affiants    1596 

§  2764.  Injunction  to  stay  proceedings  at  law 1596 

§  2765.  Injunction  to  stay  ejectment 1597 

§  2766.  Bond  on  ex  parte  injunction  or  restraining  order 1597 

§  2767.  Issuance   after   answer   filed — Notice ]597 

§  2768.  Endorsement   of   denial    1598 

§  2769.  Writ — Within  what  time  to  be  issued 1598 

§  2770.  Issuance  on  determination  of  vice  chancellor 1598 

§  2771.  Injunction   for  relief  against  common  nuisance 1598 

§  2772.  Time  between  teste  and   return    1598 

§  2773.  Custody— Bond     1599 

§  2774.  Bond — Appearance    1599 

§  2775.  Rule  for  examination  on  interrogatories — Discharge  on  failure 

to    enter    1599 

§  2676.  Settlement   of   questions   regarding   interrogatories — Report   on 

examination    1599 

§  2777.  Service  on  adverse  party — Filing 1600 

§  2778.  Use  on  hearing  of  order  to  show  cause 1600 

§2779.  Affidavits    for   extensions — Service — Counter-affidavits 1600 

§  2780.  Service     ; 1600 

§  2781.  Deceased  persons — Service  on  personal  representative 1600 

§  2782.  Petition— Requisites    1601 

§  2783.  —  Service  of  copy    1601 

§  2784.  Petition  to  stay  enrolling  of  final  decree 1601 

§  2785.  Cause  submitted  without  argument  by  consent 1601 

§  2786.  Order  for  re-hearing  not  to  stay  proceedings  on   interlocutory 

decree     •• 1602 

§  2787.  Re-hearing  of  decrees  signed  on  advice  of  vice  chancellor 1602 


Ix  EQUITY  PRACTICE 

NEW  JEESEY  (Rules— con t.) 

§  2788.  Interlocutory   decrees   not  stayed   without   order 1602 

§  2789.  Process  not  to  issue  on  decree  without  order  in  certain  cases.  .1602 

§  2790.  Requisites  of  appeal — Service    1602 

§  2791.  Petition  for  appeal  to  be  presented  or  appeal  deemed  waived.  .1602 

§  2792.  Petitions  for  surplus — Presentment — Receipt  on  payment 1603 

§  2793.  Issuance   of   summonses 1603 

§  2794.  Petition — Requisites — Verification     1603 

§  2795.  —  Piling— Notice    1604 

§  2796.  Reference  to  special  master  in  absence  of  consent  to  payment.  .1604 

§  2797.  Conditions  precedent  to  order  for  payment 1605 

§  2798.  Bond    1605 

§  2799.  Procedure    1605 

§  2800.  Sums  bearing  interest   1605 

§  2801.  Reference — Report — Commissioners     1606 

§  2S02.  Proceedings  by  married  women — Sale 1607 

§  2803.  Dower  and  curtesy — Sale — Notice  1607 

§  2804.  —  Waiver  of  notice 1607 

§  2805.  Ascertainment  of  sum  to  be  paid  in  lieu  of  dower  or  curtesy.  ..1607 

§  2806.  Master  making  report  not  to  make  sale 1608 

§  2807.  Failure  of  complainant  to  prosecute 1608 

§  2808.  Inventory  and  account 1608 

§  2809.  — Report  of  delinquency — Reference  of  inventories 1609 

§  2810.  Examination    of    inventories    and   accounts — Report — Examina- 
tion of  witnesses  1609 

§  2811.  Bond  for  appearance   1610 

§  2812.  References — Application — Notice     1610 

§  2813.  —  Proceedings  after    1610 

§  2814.  Time  and  place  for  hearing — Notice 1610 

§  2815.  Trial     1611 

§  2816.  Examination  of  witnesses  1611 

§  2817.  Competency    of   evidence — Rulings    1612 

§  2818.  Postponement — Absent   witnesses — Argument    1612 

§  2819.  Depositions  de  bene  esse   1612 

§  2820.  Duty  of  vice  chancellor  as  to  hearing 1613 

§  2821.  Rules  governing  advisory  masters — Re-hearing 1613 

§  2822.  Duties  of  advisory  masters   1613 

§  2823.  Time  for  report  by  masters   1613 

§  2824.  Applications  referred  to  vice  chancellors 1614 

§  2825.  Report    of    sheriff — Confirmation — Objections 1615 

§  2826.  Right  to  set  up  matter  in  answer — Against  co-defendant 1615 

§  2827.  Form  of  replication 1617 

§  2828.  Certain  allegations  omitted  in  bills  and  answers 1617 

§  2829.  Requisites  of  demurrer 1617 

§  2830.  Issues   joined  on  plea   1617 

§  2831.  Order  to  revive — Procedure    1618 

§  2832.  Procedure  for  joining  new  parties 1618 

§  2833.  Death  of  sole  complainant   1619 

§  2834.  Accounts — Examinations     1619 

§  2835.  Motions— Notice    1620 

§  2836.  Duty  as  to — Accounts — Payment  to  clerk 1620 

§  2837.  Requisites  to  filing   .  .  . ". 1621 

§  2838.  Right  to  appear  by  solicitor 1621 

§  2839.  Notice— Issuance  of  writ 1621 

§  2840.  Procedure    1622 

§  2841.  Notice  of  appointment  and  to  present  claims 1622 

§  2842.  Application     1623 

§  2843.  Amount  of  allowance  in  foreclosure  proceedings 1623 

§  2844.  Order- Receipt  of  clerk 1624 

§  2845.  When  returnable   1624 

§  2846.  Arguments — When  may  be  brought  on  for  hearing 1624 


CONTENTS  OF  VOLUME  II  M 

CHAPTER  XLI 
PENNSYLVANIA 

Statutes 

§  2847.  Conformity  to  practice  of  United  States  supreme  court 16'^6 

§  2848.  Fees    1626 

§  2849.  Amendments     1626 

§  2850.  Verification  of  bill  and  answer — Effect 1627 

§  2851.  Lien  of  decrees — Revival  and  continuance 1627 

§  2852.  Issues  of  fact  on  revival 1627 

§  2853.  Jurisdiction — How   questioned — Waiver  of  trial  by  jury — Dis- 
missal of  bill  for  lack  of  proof 1627 

§  2854.  Remedy  at  law  pleaded — Effect  of  decision — Costs 1628 

§  2855.  Appeal — Raising  question  of  remedy  at  law — Transfer  of  cause 

to  law  side — Costs    1628 

§  2856.  Abatement — Death  of  plaintiff — Letters  of  administration  not 

taken   out    1629 

§  2857.  Mistake  in  name  of  party 1629 

§  2858.  Change  in  name  of  parties   1630 

§  2859.  Striking  out  names  of  parties 1630 

§  2860.  Change  in  form  of  action — Costs 1630 

§  2861.  Service    on   attorney   general 1630 

§  2862.  Service  on  non-residents    1631 

§  2863.  Service  where  defendant  not  found 1632 

§2864.  Order  or  process   of  contempt  not  to  issue — Extent  to   which 

service    required    1632 

§  2865.  Service  where  bills  filed  by  mortgagors,  persons  claiming  under 

judgment  sales,   etc 1633 

§  2866.  Service  on  mortgagee  or  plaintiff  in  judgment  not  residing  in 

county  where  mortgage  recorded  or  judgment  entered 1633 

§  2867.  Injunction   by   Philadelphia  courts  against  use   or   erection   of 

public  works   1634 

§  2868.  Bond  prerequisite    1634 

§  2869.  Bond  not  required  of  commonwealth,  city  or  county 1634 

§  2870.  Appeal  from  order  granting  preliminary  injunction 1635 

§  2871.  Appeal  from  refusal  to  grant  preliminary  injunction 1635 

§  2872,  Hearing  of  appeals  in  injunction  proceedings 1635 

§  2873.  Reference  to  master — Ascertainment  of  purparts — Allotment — 

Payments     1635 

§  2874.  Examination  of  report — Approving,  correcting  or  setting  aside.  1636 

§  2875.  Effect  of  decree   1636 

§  2876.  Partition  sale 1637 

§  2877.  Decree — Payment  of  purchase  money — Bond 1637 

§  2878.  Securing  widow  's  interest  1638 

§  2879.  Right  of  purchaser  to  possession 1638 

§  2880.  Specific  performance  of  written  contracts  relating  to  realty — 

Petition — Answer — Decree     1638 

§  2881.  Recording  decree   1639 

§  2882.  Execution  of  conveyance   1639 

§  2883.  Specific  performance  of  parol  contracts  for  sale  of  realty 1639 

§  2884.  Specific    performance    of    written    contracts    of    lunatics    and 

drunkards    1640 

§  2885.  Recording    decree    1640 

§  2886.  Execution  of  conveyance  by  committee 1641 

§  2887.  Specific  performance  of  parol  contracts  of  lunatics  and  drunk- 
ards  1641 

§  2888.  Order  or  decree  for  performance  or  rescission  of  contract  of 

lunatic  or  drunkard   1641 

§  2889.  Limitation  of  proceeding  for  specific  performance .  1642 

§  2890.  Appeal     from     decree     directing     performance — Supersedeas — 

Bond    1642 

§  2891.  Reforming  defective  certificate  of  acknowledarnent 1643 


Ixii  EQUITY  PRACTICE 

PENNSYLVANIA  (Stat.— cont.) 

§  2892.  Procedure    1643 

§  2893.  Eight    of    plaintiff 1644 

§  2894.  Place    of    filing    1644 

§  2895.  Form  and  contents 1644 

§  2896.  Verification  by  complainant 1645 

§  2897.  "Who  may  make  oath 1645 

§  2898.  Interrogatories    1645 

§  2899.  Issue  of  scire  facias 1645 

§  2900.  Service  of  bill  and  interrogatories  prerequisite 1645 

§  2901.  Capias     1646 

§  2902.  Service  on  other  than  defendant 1646 

§  2903.  Costs    1646 

§  2904.  Matters  of  account — Perfecting  appeal 1646 

§  2905.  Supersedeas — Payment  of  money   involved — Bond 1647 

§  2906.  Assignment  or  delivery  of  personalty  involved — Bond 1647 

§2907.  Order  or  decree  directing  execution  of  conveyance — Bond 1647 

§  2908.  Injunction— Bond    1648 

EuLEs  OF  Court 

§  2909.  Courts  always  open  for  certain  purposes 1648 

§  2910.  Prothonotary  's  office  to  remain  open 1649 

§  2911.  Filing,  printing  and  endorsing  bill 1649 

§  2912.  Service  of  copy  of  bill  on  defendants — Notice  to  appear 1649 

§  2913.  Eule   to   answer— Notice    1650 

§  2914.  Additional    time   to   answer 1650 

§  2915.  Suits  by  persons  under  disability — Guardians  ad  litem 1650 

§  2916.  Service  on  defendant 1650 

§  2917.  Service  on  husband  and  wife — Service  on  non-residents 1650 

§  2918.  Service  on  corporations — On  commonwealth 1650 

§  2919.  Service    on   non-resident — Subpoena 1651 

§  2920.  Service  by  publication 1651 

§2921.  Entry  of  suit  on  docket — Entry  of  defendant's  appearance — 

Failure  to  appear    1651 

§  2922.  Printing    of    pleadings — Suits    by    poor    persons — Injunction 

proceedings     1652 

§  2923.  Contents  of  bill — Conciseness — Eecitals  from  documents — Scan- 
dal and  impertinence 1652 

§  2924.  Address   of  bill    1653 

§  2925.  Paragraphs   of   bill — Statement  of  facts — Omission  of   formal 

averments    1653 

§  2926.  Appearance  and  answer  where  direct  relief  not  sought , .  .1653 

§  2927.  Infants  or  persons  not  sui  juris  as  parties 1654 

§  2928.  Persons  not  in  jurisdiction  as  parties 1654 

§  2929.  Persons   not  made   parties — Procedure  as  to 1654 

§  2930.  Numerous   parties    1654 

§  2931.  Trustees    as    parties 1654 

§2932.  Heirs-at-law  as  parties  in  suits  to  execute  trusts  of  wills.  ..  .1655 
§2933.  Suit  on  joint  and  several  demand  against  several — Cross-bill.  .1655 

§  2934.  Want  of  parties — Objection  at  hearing 1655 

§  2935.  Vi''ant  of  parties — Objection  in  answer — Argument — Amendment 

or    dismissal   of   bill 1656 

§  2936.  Dismissal   of  bill  by  agreement 1656 

§  2937.  Eule  on  defendant  to  demur  or  answer — Decree  pro   confesso 

— Attachment   to   compel    answer 1656 

§  2938.  Decree    pro    confesso — Setting    aside 1657 

§  2939.  Demurrer — Answer  in  part — Issues  of  fact 1657 

§  2940.  Demurrer — Afiidavit — Form    1657 

§  2941.  Argument  on  demurrer   1658 

§  2942.  Demurrer    not    covering    bill — Answer     covering    matter     de- 
murred   to    1658 

§  2943.  Amendment  of  bill  where  plea  or  demurrer  allowed 1658 


CONTENTS  OF  VOLUME  II  Ixiii 

PENNSYLVANIA  (Eules— cont.) 

§  2944.  Demunei-  overruled — Answer — Frivolous  demurrer — Decree  pro 

coufesso    1658 

§  2945.  Answer — Form — Contents 1659 

§  2946.  Specific    interrogatories — Filing — Service — Answering    1659 

§  2947.  Refusal  to  answer  interrogatories — Objections  and  exceptions.  .1660 

§  2948.  Cross-bills — Form — Service    1660 

§  2949.  Oath  to  answers — Who  may  take  1661 

§  2950.  Time   of   filing    1661 

§  2951.  Failure  to  file  amended  answer — Hearing  on  exceptions — Addi- 
tional time  for  filing  exceptions — Printing  exceptions — Costs.1661 
§  2952.  Allowance    of    exception — Amendment    of    answer — Compelling 

better  answer   1662 

§  2953.  Scandal  and  impertinence — Exceptions    1662 

§  2954.  Filing — Eule  to  reply — Form  of  replication 1662 

§  2955.  Amendment  of  bill  on  motion 1663 

§  2956.  Amendment  before  answer  or  demurrer — Notice    1663 

§  2957.  Amendment  after  answer  or  demurrer — After  replication 1663 

§  2958.  Failure  to  file  and  serve  amendments 1664 

§  2959.  Demurrer  or  answer  to  amended  bill 1664 

§  2960.  Amendment    of    answer — After    replication — After    cause    set 

down    1664 

§  2961.  Bill   of   revivor— Supplementnl   bill — Joinder   of   new   ])arties — 
Service  on  new  parties — Joinder  of  personal  representative  of 

deceased  party   1665 

§  2962.  Depositions  de  bene  esse — Commission — Interrogatories — Cross- 
interrogatories 1665 

§  2963.  Return    of    commission — Notice — Opening — Exceptions — Hear- 
ing  1 666 

§  2964.  Final   interrogatory    1666 

§  2965.  Form  of  affidavits  and  depositions 1667 

§2966.  Interlocutory  applications — Examination  of  witness  in   court..  1667 

§2967.  Taking   testimony — Examiner — Rules   to   take   testimony 1667 

§  2968.  Hearings — Referees   and  masters — Calendar — Reception  of  evi- 
dence— Presence    of    judge , 1 667 

§2969.  Conduct    of    trial — Postponements — Costs — Continuances 1668 

§  2970.  Findings  of  fact  and  law — Requests — Filing 1668 

§  2971.  Entry  of  decree  nisi 1668 

§  2972.  Exceptions — Filing    1669 

§  2973.  Waiver   of   objections    1669 

§  2974.  Hearing    of    exceptions — Rulings 1669 

§  2975.  Appeal — Assignment  of  error — Necessity  of  exception 1669 

§  2976.  Dismissal  of  bill  on  close  of  complainant's  evidence 1669 

§  2977.  Hearing — Findings   and    decree — Exceptions    1669 

§  2978.  Referees — Fees — Adjournments    1670 

§  2979.  Appointments — Charges— Taxation   as   costs    1671 

§  2980.  Issues  of  fact— Verdict   1671 

§  2981.  Preparation  as  in  actions  at  law 1671 

§  2982.  Law  judge  may  grant — Notice  of  application   1672 

§  2983.  Docketing  motions,  rules  etc. — Notice  to  solicitors 1672 

§  2984.  Prothonotary — Powers  as  to  motions  and  applications 1672 

§  2985.  Motions — Applications    to    court — Docketing — Notice — Hearing 

—Grant  ex  parte 1673 

§2986.  Application  for  extension  of  time — Notice — Order    1673 

§  2987.  Philadelphia — Rules  and  orders  as  to  jileadings — Time  of  ex- 
piration      1673 

§  2988.  Costs— Taxation— Collection    1673 

§  2989.  Preliminary  injunction — Granting  on  bill  and  affidavits — Hear- 
ing— Evidence    1674 

§  2990.  Cautionary  orders- — Granting  injunction  Avithoiit  notice — Disso- 
lution      1674 

§  2991.  Form— Recitals     1674 

§  2902.  Drawing — Service   of   copy — Entry — Notice 1674 

§  2993.  Decree  for  payment  of  money — Docketing  minute 1675 


bdv  EQUITY  PRACTICE 

PEXXSTLTAXIA  (RCLis— eomt) 

S  2994.  CompeDiiiig  obedieite  to  orders  mud  decrees 1675 

{  299^  Deeiee  or  order  for  posfessum — ^Wiit  of  assistanee 1675 

{  2996l  Fiaal    process    to    execute    decide — £jK>eiiti<B> — ^Attadnnent — 

Seqnestiatioii    — 1676 

f  2997.  Peraons  not  parties — Process  for  and  against 1676 

f  299S.  CuriecUun  of  ermnts  in  orders  and  decrees 1677 

f  2999.  PetifioB — Sigaatnre — Terifieation — ^Time  for  granting 1677 

$  3<MN)l  Boles  of  court — Ad^tjons  and  ^mii^—«1i«<^|ji. 1677 

S  3001.  KngliFii  dianeei?-  rules  .- 1677 

CHAPTEB  XLn 
BHODE  ISLAND 

STATcnras 

{  3002.  Betfflra  of  soi^MnaiiaiS  and  citatioBS 167S 

{3003.  Betim-day  and  senriee  in  special  eases — Hearing  of  motioas 

far  preiiminaxy  in jancfians    167S 

{3001.  Pielininary  injoncfions — ^Matiai — Terifieation  of  biD — ^Notice 

of  motJon  in  subpoena 167S 

$30iD3.  EntxT  of  appearanee — Additional  time 1678 

f  3006L  Deannamer,    plea    m   maswer — ^Filing — ^Exceptions    to   answer — 

Be;dicalian    1679 

{  3007.  Docbeting  bill — ^AaeigMnent  for  trial 1679 

i  3008l  ¥^uhn«  to  refdv  or  exc^iit — Setting  down  caoss  for  hearing 1679 

{  3009.  BqfieataoB     .  .*. .1679 

{  3010.  Decree  pro  confesso — Motion  to  set  aade — ^Extension  of  time  to 

ansirer    1679 

{ 3011.  SopplemeBtal  raafto-  adding  to   or   amending  bill — Bringing 

in  I»rs  and  lepresenfatrres 1680 

13012.  P^a^raos  interested  becoming  parties 16S0 

f  3013.  CrosB-biD — Setting  up  raatta*  in  answer 1680 

1 3014^  Wairer  of  oaib  to  answusr— Effect 1680 

{3013.  Snliqpoam  to  non-rcsii^nt  defendant — Serrice    1^1 

{  301Gl  Of— ^laiiiiiMw^^  to  take   tesUwwT — Poweis  and  duties  of  eom- 

misaoners — Oral  testimimy — ^Befennce  to  master — Bqpost.  .1681 
{  3017.  Proces — ^Procedore — Decree — Power     of     superior     eourt     to 

dange    16K 

{  301&.  Dedaiatoiy  decrees   1682 

{3019.  ^peoal  ease   1682 

{3090.  Decrees  affecting  confingait  interests 16S3 

{  3021.  Gonstmctian  of  wiD  or  tnet  deed — ^Expenses  and  connsd  fees-16S3 

{  3Q2S.  Cont'eyanee  bf  mmntaa  in  doncenr 16S3 

{  3033.  Nnmbiering  paragraphs  of  biB  and  answer — ^Filing  copy 1684 

{  3024.  Appeal — ^Time  of  fifing — f^ees  finr  tianseript^ — Stay  of  proeeed- 

ii^s — Sale  of  real  estate 1684 

{  30SSu  Tiansenpt — FOing — ^Presenting  to  trial  judge — Betum  to  detk.l6S5 
{3026L  TranaaiHii^   papcas   to   derfc   of  aupieme   court — Docketing 

canse — ^Transer^  not  allowed — Objectaons  to  transcript 16S5 

{ 3027.  Ordess  by  trial  court  protecting  rights  pending  hearing  of 

appeal   1686 

{  302&  Report  of  facts  by  trial  judge 1686 

{  3029.  Hearing  additaonal  eridnee  on  af^wal .1686 

{3030.  Ond»s  by  Mipwnae  court  protectii^  rights  of  parties  pending 

the  aqppeal   1686 

{3031.  Hearing  ai^eal — Affirmance — Beversal — ^Modification  of  decree 

— Decrees  and  ordeis 1686 

{303S.  Berasal    or    modification    of    decree — ^AfBrmance — Beraand — 

Decrees    1687 

{  3033.  A^enls  from  injunctkms  or  orders  appointing  receiier  or  order 

or  decree  for  sde  of  property « 1687 


CONTENTS  OF  VOLUME  II  Ixv 

RHODE  ISLAND  (Stat.— cont.) 

§  3034.  Certifying   to   supreme  court   bills   concerning   wills   and  trust 

deeds — Subsequent   proceedings ,.  .  . .  1688 

§  3035.  Certifying  questions  of  law  to  supreme  court — Stay 1688 

§  3036.  Adding  parties  in  supreme  court 1688 

§  3037.  Process  for  execution  of  final  decree — When  taken  out — Waiver 

of  appeal    1688 

§  3038.  Proceedings   in   vacation 1689 

§  3039.  Sessions   on   motion-days 1689 

§  3040.  Suits  concerning  realtv   1689 

§  3041.  Other    suits ." 1689 

§  3042.  Submission  of  issues  to  jury 1690 

§  3043.  Manner  of  making — Eemoval  for  non-appearance 1690 

§  3044.  Proof  of  service   1690 

§  3045.  Issue  of  writ — Property  covered — Service — Return — Ad  damnum 

— Holding  property   1691 

§  3046.  Submission  of  pending  suits 1691 

§  3047.  Submission   of  cause   before   pendency 1692 

§  3048.  County  in  which  rule  may  be  entered 1692 

§  3049.  Procedure,   expenses,   report,   execution    on    decree — Agreement 

between   parties  as  to 1692 

§  3050.  Entry  of  decree  on  report 1692 

§  3051.  Discharging    and    recommitting    rule    and    report — Continuance 

fees    1693 

§  3052.  Oath   of   referee    1693 

§  3053.  Referees — Administering     oaths — Compelling     attendance     and 

testimony  by  witness — Issue  of  summons .^.  .  .  .  1693 

§3054.  Report  where  realty  involved — Plat — Recording — Expenses.  ...  1693 

§  3055.  Auditors — Appointment — Powers   and   duties 1693 

§3056.  — Oath — Notice    of    meeting — Adjournments — Meetings    when 

more  than  one  a])pointed 1694 

§  3057.  — Failures  of  parties  to  appear — Ex  parte  proceeding 1694 

§  3058.  — Report — Time  for  making — Failure  to  report  in  time 1694 

§  3059.  —  Exceptions  to  report— Time  for  filing 1694 

§  3060.  —  Costs— Fees   of   auditor    1694 

§  3061.  — Discharge — Recommitment   of   report 1695 

§  3062.  —  Decision   on   report— Jurv   trial 1695 

§  3063.  Waiver   of   right  to    jury   trial 1695 

§  3064.  Masters  in  chancery — Appointment — Term — Rules  of  procedure.1695 

§  3065.  Issuance  of  writs  by  masters,  auditors  and  referees 1695 

§  3066.  Stenographers — Employment  by  masters,  auditors  and  referees 

—Costs  of  reports,  etc 1696 

§3067.  Subpoenas  to   witnesses — Issued  by  masters,   auditors,  etc....  1696 

§  3068.  Surety  for  costs — When  required   '. 1696 

§  3069.  Bill  to  redeem — Procedure   1696 

§  3070.  Bill   to   foreclose— Procedure 1696 

§  3071.  Venue    of    suit    1697 

§  3072.  Service  by  publication  or  mail — When  allowed — Manner 1697 

§  3073.  Service  on  person  temporarily  absent 1697 

§  3074.  —  Failure  to  appear — Appointment  of  agent 1698 

§  3075.  Setting  off  shares    1698 

§  3076.  Bringing    interested    persons    before    court — Service — Decree — 

Submission  of  questions  to  jury 1698 

§  3077.  Partition  between   holders  of   fee  and  remaindermen — Persons 

not  in  being — Appointment  of  agent — Expenses 1699 

§  3078.  Apportionment    of   costs    1699 

§  3079.  Lien  upon  property    1699 

§  3080.  Notice   to   non-resident,    absent   or   unknown    parties — Duty   of 

commissioners     1700 

§  3081.  Report  of  commissioners — Decree — Recording 1700 

§  3082.  Division  of  property  into  lots — Streets — Consent  of  parties.  .  .  .1700 


Ls:\-i  EQUITY  PRACTICE 

ErLrs  OF  Cox:bt 

BHOPE  ISLAXI>— cont. 

I  30S3.  Subpoena — Form,  seal  and  signature 1701 

§  30S4.  Alias  process   1701 

§  30So.  Execution — Form — Attachment^ — Sequestration 1701 

§  30S6.  Writ  of  assistance   1702 

§  30S7.  Process  to  enforce  decree — Issue  to  persons  not  parties 1702 

§  3088.  Attachment  to  compel  answer  where  bill  taken  as  confessed  —  .  1703 
§  3089.  Frame  of  bill — Prayer  for  relief — Prayer  for  process — Names 

and  residences  of  parties   1 

§  3090.  Amendment  before  answer,  plea  or  demurrer 1 

§  3091.  Amendment  after  answer,  plea  or  demurrer — After  replication 

— Order — Costs 1 

§  3092.  Amendment  introducing  supplemental  matter 1 

§  3093.  Motion  to  amend — Filing  amendments 1 

§  3094-  Kecitals  in  bill — Scandal  and  impertinence  in  pleadings — Strik- 
ing out — Costs 1705 

§  3095.  Scandal    and   impertinence — Exceptions — Signing   and   filing — 

Examination  and  report  by  master 1 

I  3096.  Defect  of  necessary  or  proper  parties — Decree 1 

5  3097.  Numerous  parties — Decree    1 

S  3098.  Trustees  as  parties  in  suits  concerning  real  estate 1 

§  3099.  Parties  against  whom  direct  relief  not  sought — ^Appearance  and 

answer — Costs    1 

f  3100.  Persons  under  disability — Guardians  ad  litem 1 

§  3101.  Certificate  of  counsel— ^Affidavit  of  defendant 1 

§  3102.  Demurrer  or  plea  to  whole  or  part  of  biU — Demurrer,  plea  and 

answer  to  different  parts   1707 

§  3103.  Answer   to  matter   covered  by  demurrer   or  plea — ^Specifying 

grounds  in  demurrer   1 

§  3104.  Matters  contained  in — Defenses  which  may  be  set  up 1 

S  3105.  Eefusal  to.  answer  interrogatories 1 

i  3106.  Special  replication — Amendment  of  bill 1 

§  3107.  Supplemental  answer  after  amendment  of  bill 1 

$  3108.  Admission  of  facts  not  denied 1 

§  3109.  Before  replication — After  replication 1 

§3110.  Separate  answers — Costs    1 

S  3111.  Better  answer  where  exceptions  allowed 1 

§  3112.  Answer  to  cross-bill — Eeading  and  using 1 

i  3113.  Framing   and   settling   issues — ^Presenting  questions  of  fact — 

Filing  copies  of  i^ues 17^0 

5  3114.  Time  for  granting — Notice  and  hearing I""'"' 

f  31 15.  AfSdavit    1 

I  3116.  Number — ^Acceptance   of   appointment — Filing 1 

I  3117.  Hearing — Setting  time  and  place — Notice — Adjournment — De- 
lay by  master    1 

I  3118.  Compelling  attendance  of  witness  before  master 1 

§  3119.  Proceedings    before    master — Examination    of    parties,    docu- 
ments and  witnesses — Issue  of  commissions 1 

§  3120.  Accounting  before  master — Examination  of  accounting  party . .  1 
I  3121.  Use  of  affidavits,  depositions  and  documents  made  or  used  in 

court    1 

$  3122.  Beport — Submitting  draft  to  parties — Objections — Filing  report 

— Exceptions    1 

I  3123.  Correction  of  errors  1 

I  3124.  Drafting   decree — ^Form — ^Beeitals    1 

§  3125.  Becording   pleadings    or    decree    where    cause    settled    or    bill 

dismissed  by  consent   1714 

§  3126.  Practice  in  absence  of  applicable  rule 1714 


03 
04 

04 
05 
05 


05 
06 
06 
06 

06 
07 

07 


OS 
OS 
OS 
08 
09 
09 
09 
09 
10 
10 


.     CONTENTS  OF  VOLUME  II  Ixvii 

CHAPTKR  XLIII 
TENNESSEE 

Statutes 

§  3127.  General    rule    1715 

§  3128.  Counterpart   summons    1715 

§  3129.  Issue  of  process  to  other  counties 1715 

§  3130.  Transfer  of  cause  to  another  district 1715 

§  3131.  Venue  in  particular  cases    1715 

§  3132.  Hearing  in  circuit  court 1716 

§  3133.  Bill,  petition  or  motion 1716 

§  3134.  Address  of  bill   1716 

§  3135.  Contents — Prayers — Formal    averments 1717 

§  3136.  Answer     1717 

§  3137.  Eevising  pleadings — Striking   out — Costs    1717 

§  3138.  Waiver  of  answer  under  oath — -Answer  as  evidence 1717 

§  3139.  Answer — Incorporating  matters  of  defense — Pleading  speeially.1717 

§  3140.  Demurrer — When  necessary 1718 

§  3141.  Setting  down  matters  of  demurrer  for  arguments — Costs 1718 

§  3142.  Waiver  of  objection  to  jurisdiction  by  answer 1718 

§  3143.  Eeplieation  after  answer  not  permitted 1718 

§  3144.  Filing  answer  as  crossbill 1718 

§  3145.  Belief   to  be   granted ..1718 

§  3146.  Multifariousness,  misjoinder  or  nonjoinder — Motion  to  dismiss 

or   demurrer 1718 

§  3147.  Multifariousness — Demurrer — Amendments     1719 

§  3148.  Uniting  distinct  matters  in  bill    1719 

§  3149.  Making  of  issue— Time   for   trial 1719 

§  3150.  Filing  bill   1719 

§  3151.  Oath   to   bill— Who   mav   take 1719 

§  3152.  Verification  of  bill  out  of  state 1719 

§  3153.  Amendment  of  bill  without  leave — Notice — Costs   1720 

§  3154.  Amendment    with    leave 1720 

§  3155.  Amendment  at  anv  stage  in  discretion  of  court 1720 

§  3156.  Answer   to   amended   bill    1720 

§  3157.  Defect  of  parties — Saving  rights  in  decree — Amendment 1720 

§  3158.  Misjoinder — Objection  at  hearing 1721 

§  3159.  Subpoena  to  answer  and  copy  of  bill — Issue  by  clerk 1721 

§  3160.  Form   of  subpoena  to  answer 1721 

§  3161.  One   to   each   county 1721 

§  3162.  One  copy  bill  to  county  in  which  bill  filed 1721 

§  3163.  Service  of  copy  of  bill  with  counterpart  subpoena 1721 

§  3164.  Certified  copy  of  bill  to  issue  on  demand 1722 

§  3165.  Process  to  name  all  defendants  in  countj^ 1722 

§  3166.  Service  of  process    1722 

§  3167.  Execution— Eeturn    1722 

§  3168.  Eeturn   day— Original  process    1722 

§  3169.  —  Other    process    1722 

§  3170.  Service  of  original  subpoena — Five  days  before  return  day.  .  .  .1722 

§  3171.  — Less  than  five  days  before  return  day 1722 

§  3172.  When  personal   service  dispensed   with 1723 

§  3173.  —  Stating  in  bill,  affidavit  or  return 1723 

§  3174.  Entry  of  order  on  rule  docket  requiring  defendant  to  appear.  .1723 

§  3175.  Publishing  copy  of  order  of  publication 1723 

§  3176.  Time   of  making   order 1724 

§  3177.  Contents  of  order   1724 

§  3178.  Description  of  unknown  parties 1724 

§  3179.  Proof  of  publication 1724 

§  3180.  Decree  pro  confesso  proceedings  in  contempt 1724 

§  3181.  Attachment    for    contempt 1724 

§  3182.  —  Eeturn    1724 

§  3183.  Second   attachment— Forfeiture   of   bond 1725 


Ixviii  EQUITY  PKACTICE 

TENNESSEE  (Stat.— cont.) 

§  3184.  Commitment    1725 

§  3185.  Plea  or  demurrer  after  attachment 1725 

§  3186.  Procedure  after  defendant  committed   1725 

§3187.  Discharge    1725 

§  3188.  Extending  time  to   answer 1725 

§  3189.  When  bill  taken  as  confessed 1725 

(1)   Where  personal  service  had 1725 

{2)  Where  service  by  publication 1725 

(3)  Where  process  of  contempt  executed 1726 

(4)  Where  plea  or  demurrer   overruled 1726 

(5)  Failure  to  answer  on  exceptions  to  answer 1726 

§  3190.  Setting  cause   for  hearing    1726 

§  3191.  Order  pro  confesso— Effect   1726 

§  3192.  Suits  against  infants  and  persons  non  compos 1726 

§  3193.  Other   exceptions — Proceedings    1726 

§  3194.  Depositions     1727 

§  3195.  Setting  order  aside    1727 

§  3196.  Non-residents  or  unknown  persons  not  served 1727 

§  3197.  Appearance  and  defense  by  other  after  judgment  by  default.  .1727 

§  3198.  Attachment  cases 1727 

§  3199.  When  decree  absolute  where  personal  service  not  had 1727 

§  3200.  Death   of  defendant  before  service 1728 

§  3201.  Time  within  which  answer  to  be  made 1728 

§  3202.  Security  from  complainant 1728 

§  3203.  Title  under  decree    1728 

§  3204.  Manner   in   which   defense  made 1728 

§  3205.  Questioning    jurisdiction 1729 

§  3206.  Grounds  for  dismissal  of  bill 1729 

§  3207.  Amendments    1729 

§3208.  Grounds  of  demurrer — Plea  for  misjoinder  or  nonjoinder 1729 

§  3209.  Eule  to  proceed  with  cause " 1729 

§  3210.  —  Failure  to  proceed   1729 

§  3211.  Motion  by  defendant  to  dismiss  for  default 1730 

§  3212.  Eelief  of  complainant  from   default 1730 

§  3213.  Setting  down  plea  or  demurrer  for  argument — Issue  on  plea — 

Finding  for  complainant    1730 

§  3214.  —  Term  at  which  set  1730 

§  3215.  Answer  where  plea   or  demurrer  overruled 1730 

§  3216.  Plea  or  demurrer  after  attachment 1730 

§  3217.  Costs  on  plea  or  demurrer 1730 

§  3218.  Administering   oath   to   answer 1731 

§  3219.  —  Special    commissioner     1731 

§  3220.  Filing  answer — Notice — Time  for  exceptions  1731 

§  3221.  Time  for  trial   1731 

§  3222.  Exceptions — Duty  of  clerk — Notice  to  defendant 1731 

§3223.  Filing   answer — Notice   to   complainant — Appeal    1731 

§  3224.  —  Hearing  appeal  in  vacation    1732 

§  3225.  Cost   on  exceptions 1732 

§  3226.  Taking  proof  pending  appeal  on  exceptions 1732 

§3227.  Decree   pro   eonfe?so   where   answer   insufficient 1732 

§  3228.  Answer  to  original  bill  before  answer  to  cross-bill 1732 

§  3229.  Waiver  of  oath  to  answer  to  cross-bill 1732 

§  3230.  Vacation — Powers   of  chancellor 1733 

§  3231.  —  Carrying  into  effect  order  or  decree 1733 

§  3232.  —  Notice  of  proceedings  to  adverse  party 1733 

§  3233.  —  Limits  on  power  of  chancellor  to  act 1733 

§  3234.  — Appointment  of  commissioners  to  take  accounts 1733 

§  3235.  —  Appointment  of  process  servers 1733 

§3236.  Chancellor's  control  of  proceedings  in  master's  office 1733 

§  3237,  Incompetency  of  chancellor — Power  of  chancellor  of  adjoining 

division     1734 

§  3238.  —  Affidavit  of  applicant   1734 

§  3239.  Kules,  notices,  etc.— Entry  by  clerk 1734 


CONTENTS  OF  VOLUME  II  Ixix 

TENNESSEE  (Stat.— cont.) 

§  3240.  —  Time  for  making    1734 

§  3241.  —  Entry  on  rule  docket    1734 

§  3242.  Clerk  and  master — Power  to  act  at  oiEce 1734 

(1)  Entry   of   suggestion   of   death   and   issue   of   process 

to  revive   1734 

(2)  Order  of  publication 1735 

(3)  Making  and  setting  aside  orders  pro  confesso 1735 

(4)  Appointment  of  guardians  ad  litem 1735 

(5)  Making  orders  for  taking  of  depositions 1735 

(6)  Opening   causes    for   proof 1735 

(7)  Other   acts    1735 

§  3243.  Eule  days    1735 

§  3244.  Notice  of  filing  of  answer — Duty  to  give .1735 

§  3245.  Notice  of  rules — Duty  to  give 1735 

§  3246.  Alteration  of  rules  by  clerk  and  master 1735 

§  3247.  Eevivor  on  death  or  marriage  of  party — Scire  facias 1735 

§  3248.  —Issue  of  scire  facias ." 1736 

§  3249.  —  Defense    1736 

§  3250.  —  Contents   of   scire   facias 1736 

§  3251.  —  Filing    bills     1736 

§  3252.  Hearing  on  bill  and  answer — Setting  by  complainant 1736 

§  3253.  —  Setting  of  causes  by  clerk 1736 

§3254.  Causes  at  issue  without  replication   filed — Trial 1736 

§  3255.  Entry  of  proceedings  in  clerk's  memorandum  book 1737 

§  3256.  Duty  of  chancellor 1737 

§  3257.  Con'firming  sale  of  land 1738 

§  3258.  Decrees — Entry  by  clerk — Signing  minutes 1738 

§  3259.  Appeal  from  decree  entered  in  vacation 1739 

§  3260.  Examination   of   file 1739 

§  3261.  Order  as  to  answer  by  demurrant 1739 

§  3262.  Issue  of  final  process  by  clerk 1740 

§  3263.  Custody  of  decrees  by  clerk 1740 

§  3264.  When  decree  takes  effect 1740 

§  3265.  Reinstatement  of  cause 1740 

§  3266.  Power   to   grant    1741 

§  3267.  Issue  on  first  application  only    1741 

§  3268.  Issue  to  stay  sale  of  realty  under  mortgage  or  trust  deed 1741 

§  3269.  —  Notice     1742 

§  3270.  —  Allegations     1742 

§  3271.  —  Delay  of  proceedings  for  trustee  or  mortgagee 1742 

§  3272.  —  Hearing— Decree    1742 

§  3273.  Second    application    1742 

§  3274.  Indorsement  of  refusal  on  bill — Erasure 1742 

§  3275.  Sealing  fiat— Directing  to  clerk 1743 

§  3276.  Injunction— Bond     1743 

(1)  '- — Against  judgment  at  law 1743 

(2)  —  Before  judgment  at  law 1743 

§3277.  —Penalty   of   bond _ » 1743 

§  3278.  —  Appointment  of  commissioner  to  take  security 1743 

§  3279.  —  Ascertainment  of  damages — Trial  of  issues 1744 

§  3280.  Service  of  injvmction  on  evading  defendant 1744 

§  3281.  Motion  to  dissolve  or  modify  injunction  in  vacation — Notice..  ..1744 

§  3282.  Motion  to  dissolve  injunction — Time  for  making 1744 

§  3283.  —  Where  answer   excepted   to 1744 

§  3284.  Decree  on  dissolution — Amount    1744 

§  3285.  Dissolution  of  injunction — Refunding  bond 1745 

§  3286.  Decree    for    delivery    of    attached    property    or    payment    of 

damages     1745 

§  3287.  Power  of  chancellor  as  to  extraordinary  process  in  vacation — 

Reduction  of  levy  or  bond   1745 

§  3288.  Receivers — Appointment  in   vacation 1745 

§  3289.  —Bond    1745 

§  3290.  Application  of  provisions  to  all  proceedings 1746 


bs  EQUITY  PRACTICE 

TEXXE5SEE  (Stat.— eont) 

f  3i91.  Applieation  of  provisions 1 

f  3:Iii2.  G^ieral  rnks  applicable    1 

§  3i!?3.  TestamoDT  to  be  taken  in  writing — Exeeptions  to  rale 1 

§  32M.  Time  for  taking  testimonj  1 

§  329-5.  Continaanee — Canse  open  for  proof — Time  alloired 1 

§  3296.  Proof  of  exhibits 1 

§  3297.  Depositions  to   writings — Annexing 1 

f  3298.  Depositions — Time  for  taking 1 

f  3299.  Be-examination  of  witness 1 

i  3300.  Deposition   de  bene  esse 1 

§  3301.  Interrogatories    1 

§3302. — Faihue   to   answer 1 

§  3303.  Rigbt  to  jury  trial 1 

§  3301.  Time  for  trial — gammoning  jmy 1 

§  3305.  Demand  for  jmy  after  eanse  ready 1 

§3306.  Framing   issues    1 

§3307.  Trial — Findings  of  jury 1 

§  3308.  Attendanee  of  witnrases   1 

§  3309.  Beporfc  of  derk  and  master — ^Filing  1 

§  3310.  Order  of  referemee — ^Failure  to  obey  1 

§  3311.  —  Penalty    1 

5  3312. — Exeeution    witlioiit   delay    1 

§  3313.  Qerk  and  master  to  pay  orer  money 1' 

§  3314.  Beeital  of  facts   1 

§  3313.  —  When   proper    1 

§  331&  Enforcement  of  decrees,  etc 1 

§  3317.  Attachment    1 

§  3318.  —  When  serrice  of  copy  of  decree  not  prerequisite J. 

§3319.  —Bail  not  allowed   1 

f  3320.  —  Discharge  on  habeas  corpus 1 1 

§  3S21.  —  Notice  of  hearing  on  writ  of  habeas  corpus 1 

I  3322.  EEeet  of  decree 1 

§  3323.  Appointment  'of  commissioner  to  execute  couTevanees,  ete 1 

$  332-L  Decree  as  couTeyanee  release  or  acquittance 1 

§  332-5.  Writ  of  sequestration   1 

§  3326-  Enforconent  of  execution  of  decree  by  other  means 1 

5  3327.  Sale  of  property — Fixing  terms  in  decree — Freedom  from  re- 
demption— Disposal  of  surplus  1 

§  3328.  Staving  proceedings  1 

§  3329.  Security    1 

§  3330.  Interlocutory   proceedings    1 

§3331.  Final  decree 1 

§  3332.  Dismi^al  for  want  of  prosecution 1 

§  3333.  Power  of  chanceDors  to  make 1 

f  333-L  Power  of  individual  chanceDors 1 

§  3335.  Who  may  procure  writ 1 

§  3336.  Time  for  petition — Supeisedeas '. 1 

S  3337.  Supeisedeas— Bond    1 

§3338.  Notice— Service    1 

§  3339.  Grounds  for  issue  of  writ 1 

§  3340.  Appeal  to  suprone  court 1 

§  3341.  Bond — ^Time  for  giving — ^Pauper  oath 1 

I  3342.  Appeal  in  nature  of  writ  of  oxor 1 

$  3313.  —  Bond— ^Proceedings    1 

§3344.  Writof  enror 1 

§  334-5.  —  Supersedeas    1' 

§  3346.  —  Isne  without  supeisedeas — ^Bond 1 

§  3347.  —  Application  to  dreuit  derk   1 

§  3348.  — Application  to  supreme  court  derk 1 

§  3349.  —  Application  to  appellate  court  or  judge 1 

{3330.  — Bond     1 

13351.  BID  of  exceptions — Including  rulings  and  evidence 1 

I  3352.  —  Setting  out  excluded  evidence   1 


46 
46 
46 

46 
■46 
47 
47 
47 
47 
47 
47 
47 
■4S 
4S 
48 
•4S 
■48 
■48 
49 
49 
49 
49 
49 
49 
49 
50 
50 
50 
50 
50 
50 
50 
50 
51 
51 
51 

51 
52 
52 
53 
53 
53 
53 
53 
53 
-53 
53 
■54 
54 
54 
"54 
'55 
-55 
'5-5 
55 
'55 
5-5 
56 
■5Q 
56 
56 
56 


CONTENTS  OF  VOLUME  II  Ixxi 

TENNESSEE  (Stat.— cont.) 

§  3353.  Depositions  and  exliibits  as  part  of  record 175(3 

§  3354.  Findings  of  fact — Appeals   and  writs  of  error — How  taken — 

Security — Trial  in  supreme  court 1757 

§  3355.  Decree — Is-sue  of  final  process — Eeturn   1757 

§  3356.  Lien  of  decree  1757 

§  3357.  Eules    1758 

§  3358.  Transfer  of  causes  from  supreme  court 1758 

§  3359.  Appeals   from   decisions   in  transferred   causes 1758 

§  3360.  When  allowed   1758 

§  3361.  Attachment   and   injunction    1758 

§  3362.  Other   creditors   joining    1758 

§  3363.  Setting  aside  conveyances    1759 

§  3364.  Eeference   to  master — Costs    1759 

§  3365.  Subjecting   claims    due    non-residents .1759 

"RiTLES   OF    COITRT 

§  3366.  Stating  residence  of  parties  in  bill 1759 

§  3367.  Filing    exhibits    1760 

§  3368.  Indorsing  date  of  filing   1760 

§  3369.  Exceptions  for  scandal  or  impertinence — Eeport  by  clerk  and 

master — Appeal     1760 

§  3370.  Exceptions  to  answer  for  insufficiency — Procedure 1760 

§  3371.  Exceptions    not   to    delay 1761 

§  3372.  Plea  or  demurrer  where  time  granted  to  answer 1761 

§  3373.  Bill   of  costs  to  be  annexed. 1761 

§  3374.  Notice   to   take  depositions — Proof    i 1761 

§  3375.  —  Service 1761 

§  3376.  Taking  proof— Time  allowed    1761 

§  3377.  Exceptions    to    depositions    1761 

§  3378.  Ee-examination  of  witnesses 1762 

§  3379.  Writing  and  dating    1762 

§  3380.  Fastening  after  entry    1762 

§  3381.  Account — Fixing  time  for  taking — Notice    1762 

§3382.  Time  for  taking  account  and  reporting — Notice  to  parties.  ..  .1762 

§  3383.  —  Service   of  notice— Failure   to   attend 1763 

§  3384.  Adjournments     1763 

§  3385.  Service  of  notice  where  parties  numerous 1763 

§  3386.  Making   report    1763 

§  3387.  Eeference  to  record  in  rejiort 1763 

§  3388.  Filing   report    1763 

§  3389.  Failure  of  party  to  attend — Closing  evidence — Opening  evidence. 1763 

§  3390.  Examination    of   witnesses .1764 

§  3391.  Ee-examination   by  master    1764 

§3392.  Exceptions  to  report — P^iling — Setting  down  for  argument.  ...  1764 

§  3393.  —  Form    and    contents 1764 

§  3394.  Confirmation    of   report 1764 

§  3395.  Hearing  on  exceptions 1764 

§  3396.  Notice  of  reference  for  account 1765 

§  3397.  Cross-examination  of  witness  after  decree  set  aside 1765 

§  3398.  Effect  of  sworn  answer,  on  motion  to  dissolve 1765 

§  3399.  Notice  of  motion  to  dissolve 1765 

§3400.  Motion  to  dissolve  injunction — Exceptions  to  answer 1765 

§  3401.  Protection  of  rights  of  defendant 1766 

§  3402.  Arrest  and  fine  where  contempt  committed  in  presence  of  court.1766 
§  3403.  Procedure  where  contempt  not  committed  in  presence  of  court.  .1766 

§  3404.  Commitment  of  witness  refusing  to  answer 1767 

§  3405.  Attachment  against  defendant  not  answering 1767 

§3406.  Clerk  and  master  failing  to  comply  with  order  of  reference..  .1768 

§  3407.  Payment   of    costs    .  . .  ." 1768 

§  3408.  Costs  on  continuance  by  consent 1768 

§  3409.  Time   for   hearing    1768 

§  3410.  Preparation  of  papers    1768 


Ixxii  EQUITY  PRACTICE 

TENISTESSEE  (Eules— oont.) 

§  3411.  Brief    1769 

§  3412.  Eeturn  day — Appearance  bv  defendant    1769 

§3413.  — Where  process  executed  within  five  days  before  return  day.  1769 

§  3414.  —  Where  service  had  by  publication 1769 

§  3415.  Alias  or  mesne   process — Eeturn   day    1769 

§3416.  — Where  process  executed  within  five  days  before  return  day.  1770 

§  3417.  Opposing   organization    1770 

§  3418.  —  Answer  under  oath   1770 

§  3419.  —  Effect  of  petition  and  answer   1770 

§  3420.  —  Evidence     1770 

§  3421.  Application   for   organization — Docketing    1770 

§  3422.  Payment   of    fees    1770 

§  3423.  Supplying  lost  papers   1771 

§  3424.  When  proceedings  enrolled 1771 

§  342.5.  When   authorized    1771 

§  3426.  Petition— Verification — Presenting     1771 

§  3426a.  ^Motion  that  complainant's  solicitor  produce  his  authority.  ..  .1771 

§  3426b.  Motion  that  securitv  for  costs  be  furnished 1772 

§  3426c.  Motions  that  exhibits  be  filed 1773 

§  3426d.  ^lotions   thnt   husband   or   wife   answer   separately 1773 

§  3426e.  Motion  that  defendant  be  granted  further  time  to  answer.  .  .  .1773 

§  3426f.  Motion  that  order  pro  confesso  be  set  aside 1774 

§  3426g.  Motion  that  complainant  be  ruled  to  take  steps 1774 

CHAPTEE  XLIV 
YEEMOXT 

Statutes 

§  3427.  Jurisdiction     1775 

§  3428.  Eules    1775 

§  3429.  Who  are    .  . '. 1775 

§  3430.  Jurisdiction     1775 

§  3431.  Testimony     1775 

§  3432.  Stated   terms    1775 

§  3433.  Court  always  open    1776 

§  3434.  Eeturnable  where    1776 

§  3435.  Address     1776 

§  3436.  Process — Signed    how    1777 

§  3437.  Process — Served    how     1777 

§  3438.  Eecognizance  required    1777 

§  3439.  Notice  to  non-resident  defendants   1777 

§  3440.  Publication     1777 

§  3441.  Default— Further  notice    1777 

§  3442.  Writ  of  sequestration   1778 

§  3443.  Security  for  costs   1778 

§  3444.  Prolixity     1778 

§  3445.  Set-off     1778 

§  3446.  Answer  not  evidence  in  criminal  prosecution 1778 

§  3447.  By    chancellor    1778 

§  3448.  Hearing,  when  held 1778 

§  3449.  Commission     1779 

§  3450.  Petition — Notice    1779 

§  3451.  Oaths     1779 

§  3452.  Examination     1779 

§  3453.  —  How   conducted    1779 

§  3454.  Testimony  written    1779 

§  3455.  Appointment  of  special  masters    1779 

§  3456.  Trials— Evidence     1780 

§  3457.  Witnesses — Contempt     17S0 

§  3458.  Notice  of  hearing    1780 

§  3459.  Admission  of  evidence   1780 


CONTENTS  OF  VOLUME  II  Ixxiii 

VEEMONT  (Stat.— cont.) 

§  3460.  Eeport     1780 

§  3461.  Decree— Appeal    1780 

§  3462.  Exceptions     1780 

§  3463.  Death  does  not  abate 1781 

§  3464.  Petition   for   revival 1781 

§  3465.  Service — Appearance    1781 

§  3466.  Answer   of   representative    1781 

§  3467.  Eepresentative  may  amend   1781 

§  3468.  Co-plaintiff 's  representative  made  defendant 1781 

§  3469.  Defendant's    petition    1782 

§  3470.  Order    1782 

§  3471.  Surviving  defendant 's  petition    1782 

§  3472.  Procedure    thereon     1782 

§  3473.  Proceedings  when  cause  does  not  survive 1782 

§  3474.  Issue    1783 

§  347.5.  Bond   required    1783 

§3476.  —Exceptions    1783 

§  3477.  —  To   stay  ejectment    .^^ 1783 

§  3478.  Damages     ,^B|^..1784 

§  3479.  Bond    filed    ^^Hl  .1784 

§  3480.  Security  on   dissolution    ^^■l..l784 

§  3481.  Damages   on   final   decree 91^  •  •^'^^^ 

§  3482.  Of  goods  attached    -^flP^- •  •  •  -1784 

§  3483.  Notice  of   petition .'. 1785 

§  3484.  Eeceiver 's   bond    1785 

§  3485.  Order  for  possession    1785 

§  3486.  Borrowing   money    1785 

§  3487.  Sufficiency  determined    1786 

§  3488.  Delivery  for  prosecution   1786 

§  3489.  Prosecution     1786 

§  3490.  Petition  and  decree    1786 

§  3491.  Procedure  by  bill   1788 

§  3492.  Joinder  of  attaching  creditors 1788 

§  3493.  Entitling  and  entry 1788 

§  3494.  Chancellor  out  of  office  may  sign 1788 

§  3495.  Eecord     1788 

§  3496.  Enforcement     1788 

§  3497.  Writ  of  possession    1788 

§  3498.  Copy  recorded  in  land  records  1789 

§  3499.  Eedemption  if  copy  not  recorded 1789 

§  3500.  Decree  for  conveyance  of  land 1789 

§  3501.  Motion   for  appeal    1789 

§  3502.  Interlocutory   orders   after   appeal 1790 

§  3.503.  Files    transferred    1790 

§  3504.  Hearing    1790 

§  3505.  Eemanding    1790 

§  3506.  Accounting    1790 

§  3507.  Court  may  rehear   1791 

§  3508.  Petition— Service     1791 

§  3509.  Effect     1791 

§  3510.  Files     1791 

§  3511.  Amendments — Additional  testimony   1791 

§  3512.  Procedure    1792 

§  3513.  Sustained  when    1792 

§  3514.  Eules    1792 

§  3515.  Procedure    1792 

§  3516.  Set-off  and  transfer  not  abridged 1793 

§  3517.  By  delivering  copy  of  process  and  order 1793 

§  3518.  Delivery  of  copies — By  whom  made — How  proved 1793 

§  3519.  Levying  creditor  may  apply  to  chancery 1793 

§  3520.  Proceedings   to   extend   lien 1794 

§  3521.  Eeeord   of   decree    1794 

§  3522.  Subpoena— Form    1794 


Ixxiv  EQUITY  PRACTICE 

VERMONT   (Stat.— cont.) 

§  3523.  Service  of  bills  and  petitions — Appearance 1795 

§  3524.  Powers  of  judges  of  supreme  court — Disqualifications 1795 

KuLES  OF  Court 

§  3525.  Court  always  open  for  business — Powers  and  duties  of  chancel- 
lors      1796 

§  3526.  General  requisites   1796 

§  3527.  Introductory   part — Form    1796 

§  3528.  Certain    clauses    may    be    omitted — Counter    statements — Inter- 
rogatories     1797 

§  3529.  Prayer    1797 

§  3530.  Prayer  for  process    1797 

§  3531.  Verification     1797 

§  3532.  Signature  of  solicitor  1797 

§  3533.  Time  for  appearance    1798 

§  3534.  Right  to  amend — Copies  to  be  furnished 1798 

§  3535.  Additional    parties    1798 

§  3536.  Certificate  of  counsel   1799 

§  3537.  Demurrer  or  plea  to  part  of  bill — Specific  denial  of  fraud  or 

combination    charged    1799 

§  3538.  Answer  instead  of  plea  or  demurrer 1799 

§  3539.  Filing — Setting  down  for  hearing — Determination  for  defend- 
ant of  facts  stated  in  plea 1799 

§  3540.  Overruling  of  demurrer  or  plea — Decree — Discovery 1799 

§  3541.  Amendment  where  plea  or  demurrer  allowed 1800 

§  3542.  Sufficiency  of  plea  or  demurrer 1800 

§  3.543.  Demurrer  to  state  grounds 1800 

§  3544.  Answer  required  irrespective  of  interrogatories — To  what  alle- 
gations unnecessary — Admissions  by  failure  to  answer 1800 

§  3545.  Certain  clauses  may  be  omitted 1801 

§  3546.  Time  for  answer  of  defendant  to  cross-bill 1801 

§  3.547.  Verification     .• 1801 

§  3.548.  Waiver  of  or  limitations  on  answer  under  oath 1801 

§  3549.  Answers — Cross-bills     1802 

§  3550.  Allegations  in  answer  seeking  affirmative  relief — Pleadings  on 

part  of  complainant  thereon 1802 

§  3551.  Exceptions — Procedure— Costs    1803 

8  3552.  Right  to  amend — After  replication  or  cause  set  down  for  hear- 
ing  1803 

§  3553.  General  and  special  replications — Time  for  filing — Dismissal  for 
want    of    prosecution — When    general    replication    considered 

pleaded 1804 

§  3554.  Special  masters — Reference — Trial  by  court — Evidence — Un- 
reasonable delay  in  bringing  cause  on  for  hearing 1804 

§  3555.  Statement  of  case — Brief 1805 

§  3556.  Unnecessary  to  recite  pleadings  or  report  of  master — Intro- 
ductory clause    1806 

§  3557.  Signature  of  solicitor — Interlineations  or  erasures — Submission 

of  final  decrees  to  solicitor  for  adverse  party 1806 

§  3558.  Time  for  entry  of  decree  pro  confesso  on  failure  to  appear — 

Entry    after   six    months 1806 

§  3559.  Time  for  recording  of  decree — Suspension — Petition — Process 
suspended  for  certain  time — Rehearing  on  particular  ques- 
tions      1807 

§  3560.  Procedure  in   general 1807 

§  3561.  Time   for   filing— Requisites 1809 

§  3562.  Direct    application    to    chancellor   required    in    certain    cases — 

Bond    1809 

§  3563.  Notice — Issuance  of  temporary  injunction  in  certain  cases 1810 

§  3564.  Requisites    to    dissolution — Answer 1810 

§  3565.  Unnecessary    recitals    of    documents    prohibited — Expunging — 

Costs    1811 


CONTENTS  OF  VOLUME  II  Ixxv 

VERMONT  (EULES— cont.) 

§  3566.  Eequisites  to  reference  for  scandal  or  impertinence 1811 

§  3567.  Eight  to  permit  proceedings  at  time  other  than  that  prescribed 

by   rules    ]  811 

§  3568.  Eequisites — Examination    of   accounting   party >.  . .  .1812 

§  3569.  Eequisites^ — Notice  of  filings   1812 

§  3570.  Duty  to  furnish  copies  to  adverse  party 1812 

§  3571.  Legibility — Accuracy-^Signature    of    solicitor 1812 

§  3572.  Eight  of  successful  party  to  costs — Terms  on  non-compliance 

with  rules   1812 

§  3573.  Form  of  verification  of  bill  or  answer — Oath  to  witnesses 1813 

§3574.  Enforcement  of  orders  and  process  by  contempt — Procedure.  .  1813 
§  3575.  Eight  of  chancellor  under  powers  conferred  on  chancery  court.  .1814 


CHAPTEE  XLV 
VIEGINIA 

Statutes 

§  3577.  Procedure    1815 

§  3578.  Jurisdiction  to  partition  lands 1815 

§  3579.  Eight  to  have  shares  of  two  or  more  laid  off  together 1816 

§3580.  Procedure  where  partition  impracticable — Dower  rights 1816 

§  3581.  Decree  to  vest  title 1817 

§  3582.  Proceeds  of  sale  as  personalty 1817 

§  3583.  Shares  of  unknown  parties 1817 

§  3584.  Effect  of  partition  or  sale  on  lessee's  rights '.  .  .  .1818 

§  3585.  Partition  of  personalty 1818 

§  3586.  Issuance — Affidavit — Procedure — Injunction — Eeceivers 1818 

§  3587.  Jurisdiction — Eight   to    remedy 1819 

§  3588.  What  may  be  tried  at— Who  may  hold 1821 

§  3589.  County  or  corporation  in  which  suits  in  equity  may  be  brought.  1822 

§  3590.  Pla.ce  where  cause  of  action  arose 1823 

§  3591.  In  what  courts  suits  may  be  brought — Transfer  to  Eichmond 

court    1823 

§  3592.  On  what  affidavit  order  of  publication  may  be  entered — When 

and  by  whom  entered 1824 

§  3593.  Docket  in  which  rules  are  entered 1825 

§  3594.  When  there  is  no  clerk  to  take  a  rule 1825 

§  3595.  Nature  of  rules — How  given 1825 

§  3596.  When  defendant  may  give  rule  to  file  declaration  or  bill — When 

plaintiff  non-suited — Damages   1825 

§  3597.  When  clerk  to  dismiss  suit 1825 

§  3598.  When  fact  of  defendant's  non-residence  to  be  returned  and  suit 

abated    1826 

§  3599.  When  plaintiff  may  amend  declaration  or  bill,  or  file  amended 

bill,  etc. — Proceedings  thereon 1826 

§  3600.  Proceedings  on  petition   1826 

§  3601.  Proceedings  when  crossbill  is  filed 1827 

§  3602.  Misjoinder    of    parties — Abatement    as    to    party    improperly 

joined     1827 

§  3603.  How   and   when  exception   to   jurisdiction  to  be  taken — When 

pleas  in  abatement  filed 1827 

§  3604.  Omission  of  protestation 1827 

§  3605.  Form  of  demurrer  or  joinder  in  demurrer 1827 

§  3606.  What  defects  not  to  be  regarded  on  demurrer 1828 

§  3607.  Argument  of  demurrer  or  plea  in  equity — If  overruled,  how  de- 
fendant proceeded   against 1828 

§  3608.  Trial  by  jury  of  plea  in  equity 1828 

§  3609.  When  answer  may  be  filed 1829 

§  3610.  Argument  of  exceptions   to   answer 1829 


Ixxvi  EQUITY  PRACTICE 

VIRGINIA  (Stat.— eont.) 

§  3611.  Proceedings  when  exceptions  sustained 1829 

§  3612.  Necessity  for  proof  of  writings 1829 

§  3613.  Effect  of  an  answer  as  evidence — When  oath  thereto  waived.  .  .1829 
§  3614.  Pleadings   may  be  sworn   to   before  clerk — Affidavit  of  belief 

sufficient    1830 

§  3615,  Judgment  or  decree  by  confession  in  vacation — How  entered — 

Validity  1830 

§  3616.  Default— Order  for  inquiry  of  damages 1830 

§  3617.  Although    bill    taken    for    confessed,    plaintiff    may    proceed 

against  defendant  by  attachment,  etc 1831 

§  3618.  When  suit  in  equity  set  for  hearing 1831 

§  3619.  When  suit  in  equity  heard  as  to  part  of  defendants — How  plain- 
tiff compelled  to  mature  his  cause  or  have  it  dismissed — New 

parties     1831 

§  3620.  Effect  of  death  of  a  several  party  where  cause  of  action  sur- 
vives— Death  of  joint  defendant  1832 

§  3621.  Judgment  or  decree  on  death  pending  appeal,  error  or  super- 
sedeas      .1832 

§  3622.  For  and  against  whom  scire  facias  may  be  sued  out — When  suit 
revived  on  motion — When  new  party  may  have  continuance 

or  amend  pleadings   1832 

§  3623.  Scire  facias  may  be  issued  in  vacation,  and  order  of  revival  en- 
tered at  rules  1833 

§  3624.  Where  party,  whose  powers  cease,  is  defendant,  how  suit  pro- 
ceeded  in    1833 

§  3625.  When  cause  may  be  stricken  from  docket  after  five  years 1833 

§  3626.  Decree  in  a  suit,  where  number  of  parties  exceeds  thirty,  and 

one  of  them  dies  or  marries 1834 

§  3627.  Accounts     1834 

§  3628.  —  Publication  of  notice    1834 

§  3629.  Attendance  of  witnesses 1835 

§  3630.  Submission  of  questions  to  court  for  instruction 1835 

§  3631.  Adjournment  ' 1835 

§3632.  Adjournments  to  other  counties  or  corporations — Depositions.  .1835 

§  3633.  Report     1836 

§  3634.  Hearing  cause  on  report 1836 

§  3635.  Clerk  to  deliver  original  papers 1836 

§  3636.  Who  may  take— Certification 1836 

§  3637.  Non-resident    witnesses    1837 

§3638.  Commission — Necessity — For  deposition  of  non-resident 1837 

§  3639.  Notice — When  may  be  returned  and  read 1838 

§  3640.  Notice  to  non-residents — Service 1838 

§  3641.  Retaking   deposition 1839 

§  3642.  Certifying,   returning  and  filing — Endorsement  of  time   of  re- 
ceipt      1839 

§  3643.  May  be  read  by  either  party 1839 

§  3644.  How  taken  after  judgment  or  decree  from  which  appeal  lies.  .  .1839 

§  3645.  Perpetuation  of  testimony 1839 

§  3646.  Interrogatories — Answers     1840 

§  3647.  Production  of  books  and  writings 1841 

§  3648.  Effect  of  two  preceding  sections  on  bill  in  equity 1842 

§  3649.  Trial  of  issue  out  of  chancery 1842 

§  3650.  Decree  or  order  for   sale — How  sale  made — Bond  of  commis- 
sioner  1842 

§  3651.  Bond  condition  precedent  to  advertising  sale — Certificate  to  ad- 
vertisement— Fees    of    clerk 1843 

§  3652.  When   purchaser   relieved   of   liability   for  purchase  money   or 

rent 1843 

§  3653.  Penalty  for  false  certificate 1844 

§  3654.  Payment  of  purchase  money 1844 

§  3655,  Rules  against  purchaser,  receiver  or  commissioner  for  payment 

of    purchase    money 1845 

I  3656.  Who  may  execute  decree  or  order  for  sale 1846 


CONTENTS  OF  VOLUME  II  Ixxvii 

VIRGINIA  (Stat.— cont.) 

§  3657.  Commissions  for  selling  and  collecting 1847 

§  3658.  Appointment  of  general  receivers — Duties 1847 

§3659.  Securities — Taking  and  keeping — Power  of  receivers  over 1847 

§  3660.  How  dividends  and  interest  collected  and  invested 1848 

§  3661.  Interest  on   loans 1848 

§  3662.  Suits  against  receivers 1848 

§  3663.  Commissioners  to  execute  deeds  or  writings — EfPect 1849 

§  3664.  Eeinstatement  of  cause  for  purpose  of  ordering  deed 1849 

§  3665.  Interlocutory  decrees  and  orders  in  vacation 1850 

§  3666.  Submission  of  cause  in  vacation — Decree — Effect 1850 

§  3667.  Power  of  judge  in  vacation  to  enforce  obedience  to  decrees  and 

orders    .  .*. 1851 

§  8668.  Injunction  to  protect  plaintiff  in  suit  for  specific  property 1852 

§  3669.  Bill  of  review — Witliin  what  time  allowed — Award  of  injunc- 
tion     1852 

§  3670.  Injunctions     1852 

§  3671.  Jurisdiction  of  injunctions 1853 

§  3672.  —  General  jurisdiction  of  judges  to  award 1853 

§  3673.  — Refusal — Power  of  judge  of  court  of  appeals  to  award 1853 

§3674.  To  what  clerk,  judge's  order  for  injunction  directed ..1854 

§  3675.  Equity  of  injunction  bill  to  be  shown  by  affidavit  or  otherwise 

— Notice  to  adverse  party  of  application 1854 

§  3676.  Court  or  judge  awarding  injunction  to  restrain  removal  of  prop- 
erty out  of  state,  may  require  forthcoming  bond 1854 

§  3677.  Injunction  bond    1855 

§  3678.  How  surety  in  forthcoming  bond  may  obtain  additional  security.  1855 

§  3679.  Dissolution  of  injunction  in  vacation 1856 

§  3680.  Damages   on    dissolution 1856 

§  3681.  Dismissal  of  injunction  bill 1856 

§  3682.  "What  not  reversible  error 1857 

§  3683.  — Want  of  answer — Want  of  replication — Depositions 1857 

§  3684.  Correction  or  amendment  of  judgment  or  decree _. .  .1857 

§  3685.  Duty  of  appellate   court  in  cases  remediable  under   preceding 

section    1858 

§  3686.  In   what   cases   petitions   for   appeal,   writ  of   error,   or   super- 
sedeas may  be  awarded   1859 

§  3687.  When  prohibited   I860 

§  3688.  Limitation  of  appeals,  writs  of  error  and  supersedea.s 1860 

§  3689.  Eehearing    1861 

§  3690.  Jurisdiction  to  enforce — Power  to  decree  sale 1862 

§  3691.  Jurisdiction  as  affected  by  amount  of  judgment 1862 

§  3692.  Limitations   1862 

§  3693.  After  demurrer  sustained  not  considered  a  waiver 1863 

§  3694.  Power  to  grant — Disregard  of  non-prejudicial  errors 1863 

CHAPTER  XLVI 
WEST  VIRGINIA 

Statutes 

§  3695.  Orders  and  decrees  made  out  of  court— Certifying  to  clerk 1865 

§  3696.  When    allowed    :  •  •  •  1865 

§3697.  Order — Form  and  contents — Publication — Newspaper — Posting.  1866 
§  3698.  Defendants    failing    to    appear— Personal    service    on    non-resi- 
dents—Return     1866 

§  3699.  Eehearing     1^*^67 

§  3700.  In  supreme  court  of  appeals 1867 

§  3701,  Entry   of   order— Publication— Posting— Hearing 1867 

§  3702.  Rehearing  where  party  not  served 1868 

§  3703.  Day  of  week  on  which  published 1868 

§  3704.  Docket  for  entry  of  rules 1868 

§  3705.  Continuance  till  next  rule  day 1868 


Ixxviii  EQUITY  PRACTICE 

WEST  VIEGINIA  (Stat.— cont.) 

§  3706.  Proceedings    for    which    rules    given — Giving    from    month    to 

month     1869 

§  3707.  Appearance  by  defendant — Eule  for  plaintiff  to  file — Non-suit 

-Costs 1S69 

§3708.  Declaration  or  bill  not  filed — Dismissal  of  suit  by  clerk 1869 

§  3709.  Non-resident    defendant — Abatement 1869 

§  3710.  Amended    declaration    or    bill — Plea   or    answer — Supplemental 

bill— Bill   of   revivor— Dismissal 1869 

§  3711.  Guardian    ad    litem — Appointment,    powers    and    duties — Costs 

and   charges    1870 

§  3712.  Plea — Combining    different    matters 1871 

§  3713.  —  What  allegations  and  prayers  unneeepsary 1871 

§  3714.  Protestation— Effect   of   omitting 1871 

§  3715.  Omission  of  formal  defence  in  plea 1871 

§  3716.  Second  or  other  plea — Unnecessary  allegations 1871 

§  3717.  Defects  or  imperfections  in  pleadings — When  harmless 1871 

§  3718.  Setting  do;\n  plea  or  demurrer  for  argument — Effect  of  over- 
ruling^— Eule  to  answer — Failure  to  answer — Decree 1872 

§  3719.  Issue   on    plea — Jury   trial 1872 

§  3720.  When  allegation  as  to  place  of  act  or  contracting  unnecessary 

in   plea    1872 

§  3721.  Jurisdictional      averments — When      unnecessary — Profert     and 

oyer    1872 

§3722.  Non-traversable  allegations — When  may  be  omitted 1873 

§  3723.  Answer — Alleging  claim  for  affirmative  relief — Effect  as  cross- 
bill—Special reply— Cross-bill    1873 

§  3724.  Uncontroverted  allegations  in  bill  or  answer 1873 

§3725.  Pill — Form — Prayer   as  to   defendants  named  in   caption 1873 

§  3726.  Verification   of  bill,   answer   and   i-eplication 1874 

§  3727.  Proof  of  writing  in  action  on  instrument — When  necessary.  .  .  .1874 

§37:28.  Proof  of  existence  of  partnership  or  corporation 1874 

§  3729.  Verification    of    pleadings — Certificate 1875 

§  3730.  Confessed   decree— Entry— Effect    1876 

§  3731.  Eule  to  defendant  to  plead — Decree  nisi — Confessed  decree.  .  .  .1876 
§  3732.  Confessed     decree — Attachment — Order    to     answer     interroga- 
tories— Plea    or    demurrer   after   attachment 1876 

§  3733.  Insufficient  answer  after  process  of  contempt — Subsequent  pro- 
cedure     1877 

§  3734.  Setting  cause  for  hearing 1877 

§  3735.  Eight  of  one  of  several  deefndants  to  have  cause  proceed 1877 

§  3736.  Several   defendants — Decree   against   those   served — Discontinu- 
ance   as    to    others 1877 

§3737.  Time  of  filing  answer — Sending  cause  to  rules — Continuance.  .1878 

§  3738.  Exceptions — Setting    for    argument 1878 

§3739.  — Sustaining — Second    answer    insufficient — Interrogatories.  .  .1878 

§  3740.  Answer  claiming  affirmative  relief — Effect  as  cross-bill 1878 

§  3741.  Amendment   adding   parties 1878 

§  3742.  Answer   denying  material  allegation — Proof  required  of  plain- 
tiff     1878 

§  3743.  Proceedings  in  vacation — Control  by  court — Eeinstating  cause — 

Correcting   mistakes    1879 

§  3744.  Death  of  one  of  numerous  parties — Decree 1879 

§  3745.  Eeinstatement  of  dismissed  or  non-suited  cause — Notice 1879 

§  3746.  Who  may  take — How  taken  and  certified 1879 

§  3747.  Non-resident   witness    1880 

§  3748.  Deposition  after  decree 1881 

§  3749.  Depositions — Notice — Eetnrn    1881 

§  3750.  Perpetuating  testimony — Bill — Proceedings — Eeport  by  commis- 
sioner      1881 

§  3751.  Docket  for  chancery  causes 1882 

§  3752.  Trial  of  issues  by  jury — Verdict — New  trial 1882 

§  3753.  Decree   for   sale   of   property — Terms   of  sale— ^Commissioner — 

Bond— Eeport    1882 


CONTENTS  OF  VOLUME  11  Ixxix 

WEST  VIRGINIA  (Stat.— cont.) 

§  3754.  Decree  against  representative  of  incompetent — Decree  for  pay- 
ment      1883 

§  3755.  Executions — Orders — Time  for  issuing 1884 

§3756.  Execution  of  deed  or  writing  under  decree — Commissioner.  ..  .1884 
§  3757.  Title  of  purchaser  of  property  sold  under  decree — Effect  of  set- 
ting aside   decree 1884 

§  3758.  Sale  of  exempt  property — Issue  in  suit  for  specific  property.  .  .  .1884 

§  3759.  Fraudulent  conveyance — Suit  by  creditor 1885 

§  3760.  Decree  for  property  or  payment  of  money — Effect — Execution.  .1885 

§  3761.  Lien  of  decree  for  payment  of  money — Execution 1885 

§  3762.  Infant  showing  cause  against  decree 1885 

§  3763.  Issue  of  injunction  before  case  ready  for  trial 1886 

§  3764.  Application  to  judge  of  supreme  court  of  appeals  for  injunc- 
tion      1886 

§  3765.  Eestraining  removal  of  property— Forthcoming  bond 1886 

§  3766.  Clerk  to  whom  injunction  order  directed 1887 

§  3767.  Bond — Conditions — Before   whom    given 1887 

§  3768.  Other  or  additional  security — Motion  by  surety 1887 

§  3769.  Dissolution  of  injunction — Damages — Liability  on  forthcoming 

bond     1888 

§  3770.  —  Dismissal   of    bill— Costs 1888 

§  3771.  Bill  of  review — When  allowed 1889 

§  3772.  Motion  to  reverse  or  correct  decree 1889 

§  3773.  In  what  cases  allowed 1889 

§  3774.  Within  what  time  record  to  be  delivered — Bond 1890 

§  3775.  Stay   of  execution— Bond 1890 

§  3776.  Suit  for  benefit  of  another 1891 

§  3777.  Powers  of  courts  of  equity 1891 

§  3778.  Amounts  which  may  be  allowed 1891 

§  3779.  Grounds— Affidavit— Order    1891 

§  3780.  Order  where  security  given — To  whom  issued — Number 1894 

§  3781.  Execution  and  return  of  order — Liability  of  officer 1894 

§  3782.  Property    leviable — Indorsement    for    garnishment — Service    on 

garnishee     1895 

§  3783.  Bond — Taking  property — Exceptions  to  bond — Return  of  prop- 
erty     '. 1895 

§  3784.  Return  of  officer 1896 

§  3785.  Issue  of  execution  on  Sunday 1896 

§  3786.  Lien   of   attachment 1897 

§  3787.  Forthcoming   bond — Conditions — Amount    1897 

§  3788.  —  Return- Exceptions  by  plaintiff— New  bond 1897 

§  3789.  Payment   of   interest  and   profits   on   property   to   defendant — 

Discharge  of  attachment  when  bond  given 1898 

§  3790.  Custody  of  property — Sale  of  expensive  or  perishable  property.  1898 
§  3791.  Examination  of  garnishee — Payment  on  bond  by  garnishee.  .  .  .1899 

§  3792.  —  Failure  to   appear 1899 

§  3793.  — Failure  to  disclose  debts  or  effects — Trial  by  jury — Costs.  .  .  .1899 

§  3794.  Order   of   publication 1900 

§  3795.  Defending  attachment   1900 

§  3796.  Contesting  right  to  sue  out  attachment — Jury  trial — Verdict — 

New  trial    .' 1900 

§  3797.  Sale  of  property  under  order  of  court 1901 

§  3798.  Sale    of    realty — Report    by    officer — Confirmation    or    resale — 

Conveyance    to    purchaser 1901 

§  3799.  Bond  before  sale  where  defeudant  not  served 1902 

§3800.  Eight  of  third  person  to  dispute  attachment — Trial  of  claim..  1902 

§  3801.  Priority  as   between   attachments 1903 

§  3802.  Rehearing   to   defendant   served   by   publication — Security   for 

costs — Rights  of  purchaser   of  property 1903 

§  3803.  —  Decree    for    defendant — Confirmation    of    original    decree — 

Costs    1904 

§  3804.  Damages  where  attachment  dismissed 1904 

§  3805.  Appeal  by  defendant — Bond — Return  of  property 1904 


Ixxx  EQUITY  PRACTICE 

WEST  TIBGTNIA  (Stat.— cont) 

§  3S06.  Bonds — Who  mar   give 1905 

§  3S07.  Arrest   of   defendant — Grounds 1905 

§  3S0S.  —  Order — Bail— Bond  of  plaintiff 1906 

§  3S09.  Form  of  order  for  arrest 1906 

§  3S10.  Coainiitment   of   delendant — Bond — Conditions 1906 

§  3S11.  —  Bond  by  defendant — Discharge 1907 

§  3S12.  —  Discharge  of  defendant 1907 

§  3S13.  Interrogatories  to  defendant  in  custody — Discharge  for  failure 

to   file    1907 

§  381-t.  Conveyance  of  property  to  arresting  officer — Interrogatories — 

Betiirn — FUing — Ordering  sale  of  property 190S 

§  3S15.  When    compellable    '. 190S 

§  3S16.  Voluntary  partition    1908 

§  3S17.  Allotting  property  to  one  party — Sale  of  whole  or  part — Distri- 
bution of  proceeds   1909 

§  3818.  Share  or  name  of  person  not  known 1909 

§  3S19.  Eights  of  lessees 1909 

§  3Si:0.  Sale    1910 

§  3S21.  Procedure     1910 

§  3S22.  Indemnifying  bond — Notice   1910 

§  3S23.  —  Failure  to  give  bond — Proceedings  where  bond  given 1911 

§  3824.  Suspending   sale    1911 

§  3825.  Causing  parties  to  appear 1912 

§  3S26.  Order  for  sale  of  property 1912 

§  3S27.  Forthcoming  bond    1912 

§  3S2S.  Disposition  of  surplus  after  sale 1913 

§  3S29.  Appointment— Kemoval    1913 

§  3S30.  Beference  of  accounts — Examination — Beport  1914 

§  3831.  —  Xotice  of  time  and  place  of  taking 1914 

§  3832.  Order  referring  account   in   pending  cause  to  commissioner — 

Xotice    1915 

§  3833.  Instructions  to  commissioner   1915 

§  3834.  Adjournments — Inspection  of  report — Exceptions — Time  of  fil- 
ing— Contents — Bequiring  to  be  made  specific 1915 

f  3S35.  Accounts — Taking  and  reporting — Adjournments — ^Delay 1916 

§  3S36.  Beports — Hearing   upon    1917 

§  3737.  Appointment — Investment  of   money 1917 

§  3S38.  Duties  and  powers  as  to  investment  in  securities 1917 

§  3839.  Collection   and  investment   of  dividends 191S 

§  3S40.  Accounts   and   statements 1918 

§  3S41.  Liabilitv— Interest  on  funds 1918 

§  3S42.  Bond    .' 1919 

§  3843.  Compensation    1919 

§  3844.  —  Fines  for  breach  of  duty 1919 

I  3845.  Interest  on  investments 1919 

§  3846.  Accounts — Settling   and    stating 1919 

§  3847.  Examination   of  statement  bv  court — Bequiring  additional  se- 
curity     ! 1920 

§  384S.  Becording   accounts    - .  1921 

§  3849.  Fees  for  making  and  recording  reports 1921 

§  3850.  Special   receiver — Appointment — Notice — ^Bond 1921 


CHAPTEE  XLTn 

UNITED  STATES 

Statttks 

§  3S51.  Begulations  as  to  proceedings  in  district  and  eireuit  courts 1923 

f  3852.  Eegulation  of  practice  by  Supreme  Court 1923 

§  3853.  Process — Amendment     1923 

§  3854.  Amendments — Demurrer    1924 


CONTENTS  OF  VOLUME  II  Ixxxi 

UNITED  STATES  (Stat.— cont.) 

§  3855.  Eevivor  on  death  of  party 1924 

§  3856.  —  Death  of  one  of  several  parties 1925 

§  3857.  Proceedings  against  several  defendants 1925 

§  3858.  — Absent  defendants  in  suits  to  enforce  liens,  clear  titles,  etc.  .1925 

§  3859.  District  court  always  open  for  equity  business 1926 

§  3860.  To  circuit  courts  of  appeals 1927 

§  3861.  When  decree  of  circuit  courts  of  appeals  final 1927 

§  3862.  Proceedings  for  injunctions  or  receivers 1928 

§  3863.  Allowance  of  appeals  by  judges  of  circuit  courts  of  appeals.  . .  .  1929 

§  3864.  To   Supreme  Court 1929 

§  3865.  Eeview^ — Regulations  as  to — When  to  be  taken 1930 

§  3866.  Writs  of  error  from  state  courts 1930 

§  3867.  Appeals  and  writs  of  error  from  district  courts 1931 

§  3868.  Certifying  questions  from  circuit  court  of  appeals  to  Supreme 

Court    1931 

§  3869.  Certiorari  to  circuit  court  of  appeals 1932 

§  3870.  Writs  of  error  and  appeals  from  circuit  court  of  appeals 1932 

§  3871.  Writs  of  ne  exeat 1932 

§  3872.  Cases  reviewed  by  Supreme  Court — By  circuit  court  of  appeals.  1933 

§  3873.  Temporary   restraining   orders 1933 

§  3874.  Injunctions — When  granted    1933 

§  3875.  Injunctions  staying  proceedings  in  state  courts 1934 

§  3876.  Restriction  on  suits  in  equity 1934 

§  3877.  Suits  against  receivers 1934 

§  3878.  Restrictions  on  appointing  receivers 1934 

Rules  of  Court 

§  3879.  District    court    always    open    for    certain    purposes — Orders    at 

chambers   1935 

§  3880.  Clerk 's  office  always  open,  except,  etc 1935 

§  3881.  Books  kept  by  clerk  and  entries  therein xl935 

§  3882.  Notice  of  orders 1936 

§  3883.  Motions  grantable  of  course  by  clerk 1936 

§  3884.  Motion   day    1936 

§  3885.  Process,  mesne  and  final 1936 

§  3886.  Enforcement  of  final  decrees 1937 

§  3887.  Writ  of  assistance 1937 

§  3888.  Decree  for  deficiency  in  foreclosures,  etc 1938 

§  3889.  Process  in  behalf  of  and  against  persons  not  parties 1938 

§  3890.  Issue  of  subpoena — Time  for  answer 1938 

§  3891.  Manner  of  serving  subpoena 1938 

§  3892.  Alias  subpoena 1939 

§  3893.  Process,  by  whom  served 1939 

§  3894.  Defendant  to  answer — Default — Decree  pro  confesso 1939 

§  3895.  Decree  pro  confesso  to  be  followed  by  final  decree — Setting  aside 

default 1939 

§  3896.  Pleadings— Technical  forms  abrogated 1939 

§  3897.  Amendments  generally   1939 

§  3898.  Further  and  particular  statement  in  pleading  may  be  required.  .1940 

§  3899.  Scandal  and  impertinence 1940 

§  3900.  Action  at  law  erroneously  begun  as  suit  in  equity — Transfer.  .  .1940 
§  3901.  Matters  ordinarily  determinable  at  law,  when  arising  in  suit  in 

equity  to  be  disposed  of  therein 1940 

§  3902.  Signature  of  counsel 1940 

§  3903.  Bill  of  complaint— Contents   1941 

§  3904.  Joinder  of  causes  of  action 1941 

§  3905.  Stockholder 's  bill    1942 

§  3906.  Amendment  of  bill  as  of  course 1942 

§  3907.  Defenses— How  presented    1942 

§  3908.  Answer— Contents— Counter-claim    1943 

§  3909.  Reply — When  required — When  cause  at  issue 1943 

§  3910.  Answer  to  amended  bill 1944 


Ixxxii  EQUITY  PRACTICE 

UNITED  STATES— (EuLES—<?ont.) 

§  3911.  Testing  sufficiency  of  defense 1944 

§  3912.  Supplemental  pleading 1944 

§  3913.  Bills  of  revivor  and  supplemental  bills — Form 1945 

§  3914.  Officers  before  whom  pleadings  verified 1945 

§  3915.  Parties  generally — Intervention   1945 

I  3916.  Representatives  of  class 1945 

§  3917.  Absence  of  persons  who  would  be  proper  parties 1946 

§  391S.  Nominal  parties 1946 

§  3919.  Suit  to  execute  trusts  of  will — Heir  as  party 1946 

§  3920.  Joint  and  several  demands 1946 

§  3921.  Defect  of  parties — Resisting  objection 1946 

§  3922.  Defect  of  parties— Tardv  objection 1947 

§  3923.  Death  of  party— Revivor  1947 

§  3924.  Trial — Testimony  usually  taken  in  open  court — Rulings  on  ob- 
jections to  evidence 1947 

§  3925.  Depositions — To  be  taken  in  exceptional  instances 1948 

§  3926.  Testimony  of  expert  witnesses  in  patent  and  trademark  cases.  .1948 

§  3927.  Evidence  taken  before  examiners,  etc 1949 

§  3928.  Stenographer — Appointme^it — Fees   1949 

§  3929.  Evidence  taken  before  examiners,  etc 1949 

§  3930.  Attendance  of  witnesses  before  commissioner,  master  or  exam- 
iner      1950 

§  3931.  Notice  of  taking  te^timonv  before  examiner,  etc 1950 

§3932.  Depositions    under    Rev.    Stat.    §§863,    865,    866,    867— Cross- 
examination    1950 

§  3933.  Deposition  deemed  published  when  filed 1951 

§  3934.  On  expiration  of  time  for  depositions,  case  goes  on  trial  calen- 
dar     1951 

§  3935.  Continuances 1951 

§  3936.  Discovery — Interrogatories — Inspection  and  production  of  docu- 
ments— Admission  of  execution  or  genuineness 1951 

§  3937.  Reference  to  master — Exceptional,  not  usual 1953 

§  3938.  Proceedings  before  master 1953 

§  3939.  Master's  report — Documents  identified  but  not  set  forth 1954 

§  3940.  Powers  of  master 1954 

§  3941.  Form  of  accounts  before  master 1954 

§  3942.  Former  depositions,  et^.,  may  be  used  before  master 1955 

§  3943.  Claimants  before  master  examinable  by  him 1955 

§  3944.  Return   of  master  "s  report — Exceptions — Hearing 1955 

§  3945.  Costs  on  exceptions  to  master  's  report 1955 

§  3946.  Appointment  and  compensation  of  masters 19-55 

§  3947.  Petition  for  rehearing 1956 

§  394S.  Suits  bv  or  against  incompetents 1956 

§  3949.  Form  of  decree 1956 

I  3950.  Correction  of  clerical  mistakes  in  orders  and  decrees 1957 

§  3951.  Preliminary  injunctions  and  temporary  restraining  orders 1957 

§  3952.  Injunction  pending  appeal 1957 

§  3953.  Record  on  appeal — Reduction  and  preparation 1958 

§  3954.  Record  on  appeal — Reduction  and  preparation — Costs — Correc- 
tion of  omissions 1959 

§  3955.  Record  on  appeal — Agreed  statement 1959 

I  3956.  Affirmation  in  lieu  of  oath 1960 

§  3957.  Additional  rules  by  district  court I960 

§  395S.  Computation  of  time — Sundays  and  holidays 196Q 

§  3959.  These  rules  effective  February  1,  1913 — Old  rules  abrogated 196^ 


CONTENTS  OF  VOLUME  III  ixxxiU 

CONTENTS  OF  VOLUME  III 

CHAPTEK  XLVIII 
FOKMAL  PARTS  TO  BILLS 

FORM  PAGE 

1.  Bill  of  complaint   (Ala.) 19(5o 

2.  Affidavit  for   use  where  the  bill  asks  injunction  or  receiver,   or 

where  ijlaiutiff  desires  to  overcome  effect  of  a  sworn  answer 
(Ala.)      19(54 

3.  Foot-note  to  the  bill   (Ala.) 1964 

4.  Prayer  lor  publication    (Ala.) 1964 

5.  Affidavit  of  non-residence  accompanying  above  prayer  (Ala.)  .  .  .  .1964 

6.  Bill  of  complaint   (Del.) 1965 

7.  Bill  of  complaint    (Pla.) 1965 

8.  Oath  to  bill    (Fla.) 1966 

9.  Bill  of  complaint   (111.) 1967 

10.  Bill  of   complaint    (Ale.) 1967 

11.  Oath  to  bill    (Me.) 1968 

12.  Bill  of  complaint    (Md.) 1968 

13.  Bill  of  complaint   (Mass.) 1969 

14.  Bill  of  complaint   (Mich.) 1969 

15.  Oath  to  bill  (Mich.) 1970 

Bill  of  complaint    (Miss.) 1970 

16.  Bill  of  complaint  (N,  H.) 1970 

17.  Bill  of  complaint   (N.  J.) 1971 

18.  Bill   of    complaint    (Pa.) 1971 

19.  Bill  of  complaint  (R.  I.) 1972 

20.  Bill  of  complaint  (Tenn.) 1972 

21.  Bill  of  complaint   (  Vt.) 1973 

22.  Bill  of  complaint   (  Va.) 1973 

23.  Oath  to  bill    (  Va.) 1974 

24.  Bill  of  complaint  ( W.  \'a. ) 1974 

SPECIAL  FORMS  FOR  IXTRODUCTORY  PARTS 

25.  Partners     1975 

26.  Surviving    partner    1975 

27.  Corporation — Domestic    1975 

28.  Corporation — Foreign    1975 

29.  Town    or    city 1975 

30.  County    1975 

31.  Executor     1975 

32.  Administrator      1976 

33.  Trustee  ot  bankrupt 1976 

34.  Infant     1976 

35.  Insane  iiersrou    1976 

36.  Creditor  on  liehalf  of  self  and  others 1976 

37.  Shareholder  in  behalf  of  self  and  others 1976 

38.  Information   by   attorney-general 1976 

39.  Information  by  attoinej'-general  and  relator 1976 

40.  Information    and    bill 1976 

SPECIAL  FORMS  FOR  SIGNATURES 

41.  By  guardian    1977 

42.  By  corporation    1977 

43.  By  town  or  city 1977 

SPECIAL  FORMS  OF  PRAYER  FOR  PROCESS 

44.  Prayer  for  writ  of  injunction  and  subpoena 1977 

45.  Prayer  for  writ  ne  exeat 1977 


Ixxxiv  FORMS 

FORM  PAGE 

46.  Prayer  for  injunction   (N.    J.)     1977 

47.  Prayer  for  injunction   (111.)    1978 

4S.  Prayer  for  injunction   (W.   Ya.)    1978 

49.  Prayer  lor  receiver 1978 

CHAPTEE  XLIX 

BILLS  E ELATING  TO  ilOETGAGES 

(1)   BILLS  TO  EEDEEM  FBOM  MORTGAGE 

50.  Bill  to  redeem  from  foreclosure  title  obtained  contrary  to  special 

agreement  (,IU.)    1979 

50a.  BUI  by  part  owner  to  redeem  from  foreclosure  of  whole  (lU.) . .  .1982 

51.  (,a)   After  demand  and  refusal  to  account  (Me.) 19S4 

52.  (b)   After  tender  and  refusal  to  accept  (Me.) 19S5 

53.  (c)   BUI  to  redeem  by  administrator  (^Me.) 19S6 

54.  Bill  to  redeem  leasehold  (Md.) 1987 

55.  (a)   After  payment,  demand  and  refusal  (Mass.) 1988 

56.  (b)   After  tender  and  refusal  to  accept  (Mass.) 1989 

57.  After  tender  and  refusal  to  accept  (Mich.) 1990 

58.  (a)   After  demand  and  refusal  (N.  H.) 1991 

59.  (b)   After  tender  and  refusal  to  accept  (X.  H.) 1992 

60.  After  tender  and  refusal  to  accept  (X.  J.) 1992 

61.  (a)   Petition  for  satisfaction  of  a  mortgage  under  act  of  March 

31,  1S23   (Pa.)    1994 

62.  (b)   Petition  under  act  of  AprU  3.  1851  (Pa.) 1994 

63.  (c)   Petition  under  act  of  June  11,  1S79   (Pa.) 1995 

64.  (d)   BUI   for   redemption   from   mortgage   after   tender   and   re- 

fusal  (Pa.)    1996 

65.  After  tender  .and  refusal  to  accept  {U.  I.) 1997 

(2)  BILLS  TO  FORECLOSE  MORTGAGES 

66.  (a)   Foreclosure  of  ordinary  mortgage  (Del.) 1997 

67.  (b)   Foreclosure  of  mortgage  securing  bond  issue  (Del.) 2000 

6S.  BUI  for  foreclosure  of  mortgage  by  executor  (Fla.) 2003 

69.  Foreclosure  of  deed  of  trust  (UL) 2006 

70.  (a)   BUI   to   foreclose  ordinary  mortgage   under   general  powers 

(Me.)    2009 

71.  (b)   BUI  to  foreclose  raUroad  mortgage  (Me.) 2010 

72.  (a)   BUI  for  foreclosure  (^Md.) 2011 

73.  (b)   Petition  for  foreclosure  (Md.) 2012 

74.  Foreclosure  of  corporation  mortgage  securing  an  issue  of  bonds 

(Mass.)     2012 

75.  Bill  for  foreclosure   (Mich.) 2014 

76.  BUI  to  foreclose  mortgage  (X.  H.) 2019 

77.  BiU  to  foreclose  mortgage  (X.  J.) 2019 

78.  Foreclosure  bUl  by  trustee  of  a  corporate  mortgage  securing  a 

bond  issue   (Pa.') 2021 

79.  BUI  of  foreclosure  against  guardian  of  minors  (R.  I.) 2023 

80.  Bill  to  foreclose  mortgage   ( Vt.) 2025 

CHAPTEE  L 
BILLS  TO  RELIEVE  FEOM  FORFEITURE 

81.  BUI  to  relieve  from  forfeiture  of  public  franchise  (111.) 2026 

82.  BUI  to  enjoin  forfeiture  of  hotel  lease  (Me.") 2029 


CONTENTS  OF  VOLUME  III  Ixxxy 

FORM  PAGE 

83.  Bill  to  enjoin  forfeiture  of  conditional  sales  agreement  (Md.) .  .  .2031 

84.  Bill  to  enjoin  forfeiture  of  mining  lease  (Pa.) 2032 

CHAPTEE  LI 
BILLS  FOR  SPECIFIC   PEKFOKMANCE   OF   CONTEACTS 

85.  Bill  by  vendee  of  real  estate  (Del.) 1.'034 

86.  Bill  by  vendee  of  real  estate  (Hi.) 2U3o 

87.  (a)   Bill  by  vendor  or  vendee  ot  real  estate  (Me.) 2037 

88.  (b)   Bill   by  vendee  against  vendor   and  purchaser  from   vendor 

(Me.) 2037 

89.  Bill  by  vendee  of  real  estate  alter  part  performance  (Md.) 2038 

90.  Bill  by  vendor  of  real  estate  aiter  part  performance  (Mass.) .  . .  .2039 

91.  Bill  by  vendee  of  real  estate  (Mich.) 2040 

92.  Bill  for  specific  performance  of  oral  agreement  where  there  has 

been  part  performance   (N.  H.) 2041 

93.  Bill  by  vendor  who  has  expended  money  on  the  real  estate  (N.  J.). 2042 

94.  Bill  by  vendee  of  real  estate  (Pa.) 2044 

95.  Bill  by  vendee  of  real  estate  (R.  I.) 2045 

CHAPTER  LII 

BILLS    TO    CANCEL   VOID    DEEDS    AND    DEEDS    VOIDABLE    FOR 
GRANTOR'S  IGNORANCE  OR  INCAPACITY 

96.  Bill  to  cancel  deed  voidable  for  grantor 's  ignorance  of  its  nature 

(111.)    • 2046 

97.  (a)   Bill  to  cancel  void  deed  and  mortgage  (Me.) 2048 

98.  (b)   Bill  to  cancel  undelivered  deed  and  record  thereof  (Me.)  .  .  .  .2049 

99.  Bill  by  devisee  under  will  vs.  grantee  in  deed  to  cancel  ileed  for 

grantor's  incapacity  and  his  ignorance  of  its  nature  (Md.) .  .  .  .2050 

100.  Bill  to  cancel  deed  of  insane  jjers-on  (Mass.) 2051 

101.  Bill  by  true  owner  to  cancel  deed  of  heirs  of  record  owner  (Mich. ). 2052 

102.  Creditor  's  bill  to  cancel  void  deed  (N.  H.) 2054 

103.  Petition  to  cancel  forged  deed  (Pa.) 2056 

104.  Bill  to  cancel  deed  recorded  but  undelivered   (R.  I.) 2057 

105.  Bill  by  principal  to  cancel  agent's  fraudulent  deed  (N.  J.) 2055 

CHAPTER  LII  I 

CREDITORS'  AND  MINORITY  STOCKHOLDERS'  BILLS  TO  OBTAIN 
RELIEF  FROM  FRAUD 

106.  Ci'editors'  Idll  to  set  asiile  finudulent  conveyance  (Del.) 2059 

107.  (a)    Creditor's  bill  to  set  aside  fraudulent  conveyance   (111.) ...  .2060 

108.  (b)    Minority  stockholders'  bill  against  majority  and  officers  in 

control   (III.)    2063 

109.  (a)   Creditor's  bill  to   set   aside  fraudulent   conveyance  to  wife 

paid  for  by  husband  's  money   (Me.) 2066 

110.  (b)   Bill   by   trustee    of   bankrupt   to    set   aside    fraudulent   con- 

veyance (Me.)    2067 

111.  (a)   Creditor's  bill  to  set  aside  fraudulent  conveyance  (Md.) .  .  .  .2068 

112.  (b)   Minority   stockhohlers'  bill    (Md.) 2069 

113.  (a)   Bill  ])y  trustee  of  bankrui)t  to  recover  fraudulent  payments 

to  insurance  company  (Mass.) 2069 

114.  (b)   Minority  stockholders'  bill  (Mass.) 2071 

115.  (i-)   Minority  stockholders'  bill  (Mass.) 2072 

116.  (a)   Creditor's  bill  to  set  aside  fraudulent  conveyance  (Mich.)  .  .2074 

117.  (b)   Minority  stockholders'  bill  (Mich.) 2075 

lis.    (a)    Creditor's  bill  to  set  aside  fraudulent  conveyance  (N.  H.) .  .2077 


Ixxxvi  FORMS 

FORM  PAGE 
119.    (b)   Minority  stockholders'  bill  against  the  corporation,  its  direc- 
tors, and  another  corporation  (N.  H.) 207.S 

1:^0.    (a)   Creditor's  bill  to  set  aside  fraudulent  conveyance  (N.  J.).  .  .2079 

121.  (b)   Minority  stockholders'  bill  (i\'.  J.) 2081 

122.  (a)   Creditor's  bill  to  set  aside  fraudulent  assignment  of  lease 

(Pa.)     2083 

123.  (b)   Minority  stockholders'  bill   (Pa.) 2084 

124.  (a)   Bill  by   trustee   in  bankruptcy  to   set  aside  preference  and 

fraudulent  conveyance  (R.  I.) 2085 

125.  (b)   Minority  stockholders '  bill  (E.  I.) 2087 

126.  Creditor's  bill  to  set  aside  a  fraudulent  conveyance  (W.  \  a.)  .  .  .  .2089 

CHAPTER    LIV 
CREDITORS'  BILLS  TO  REACH  AND  APPLY  PROPERTY 

127.  Creditor's  bill  to  reach  and  apply  an  annuity  (111.) 2091 

128.  (a)   Bill  by  judgment   creditor  in  behalf  of  himself  and  others 

against   railroad   corporation    and    directors,   to   reach   and 
apply  funds  fraudulently  withheld  (Me.) 2092 

129.  (b)   Creditor's  bill  to  reach  and  apply  property  which  cannot  be 

come  at  to  be  attached  (Me.) 2095 

130.  (c)   Creditor's  l)ill  to  reach  and  apply  property  which  cannot  be 

attached    and    seeking   to   have   absolute   deed    declared   a 
mortgage   (Me.)    2096 

131.  (d)   Bill   to   reach  and   apply  amount  due  the   debtor  under   an 

unfinished  contract  with  a  nuuiicipality  (Me.) 2097 

132.  Bill  to  reach  and  ap|  ly  a  patent  right  (Mass.) 2099 

133.  Creditors'  bill  for  discovery  of  property  and  to  reach  and  apply 

(Mich.)   2100 

134.  Creditors'  bill  to  reach  and  apply  lands  of  a  non-resident  (N.  J.)  .2103 

135.  Creditor 's  "bill  of  discovery"  (Pa.) 2104 

136.  Interrogatories  for  the  examination  of  the  above  named  defend- 

ants (Pa.)    2105 

137.  Creditor's   Idll   to    reach   and   apply   legacy    due   a   non-resident 

(R.  I.) .'.... 2106 

138.  Creditor's  bill  to   reach   and   ajjply   del)tor's  interest  in  note  of 

non-resident  (Tenn.)    2107 

CHAPTER  LV 
BILLS  RELATING  TO  TRUSTS 

139.  Bill  to  enforce  resulting  or  constructive  trust  (Del.) 2109 

140.  (a)   Bill  for  appointment  of  trustee  (111.) 2110 

141.  (b)    Bill  for  removal  of  trustee  (111.) 2112 

142.  (c)    Bill  to  enforce  constructive  trust  (111.) 2113 

143.  (a)   Bill  for  appointment  of  trustee  (Me.) 2116 

144.  (b)   Bill  for  removal  of  trustee   (Me.) 2117 

145.  (c)   Bill  for  discharge  of  trustee  (Me.) 2118 

146.  (d)   Bill  to  enforce  oral  declarafion  of  trust  (Me.) 2119 

147.  (e)   Bill  to  enforce  a  resulting  trust  for  money  had  and  received 

CMe.)    2121 

148.  (a)   Bill  for  appointment  of  trustee  (Md.) 2123 

149.  (b)   Petition  for  removal  of  trustee  (Md.) 2124 

150.  (c)    Bill  to  enforce  resultinor  or  constructive  trust  (Md.) 2]24 

Jurisdiction  over  trusts    (Mass.) 2125 

152.  (a)   Petition   for   appointment   of   new   trustee   in   place   of   one 

removed  by  death  (Mass.)    2125 

153.  (b)   Petition  for  appointment  of  trustee  without  bonds  (Mass.)  .  .2125 

154.  (c)   Petition  for  the  appointment  of  a  trustee  who  is  designated 

in  a  will  (Mass.) 2126 


CONTENTS  OF  VOLUME  III  Ixxxvii 

FOKM  P^GE 

155.  (d)   Petition  for  removal  of  trustee  (Mass.) 2126 

156.  (e)   Bill  to  esta)jlish  constructive  trust  (Mass.) 2127 

157.  Bill    for    an   accounting   and   for   appointment   of   new   trustees 

(Mich.)  2128 

158.  Bill  to  enforce  resulting  or  constructive  trust  (N.  H.) 2130 

159.  Bill  to  establish  trust  and  appoint  trustee  (N.  J.) 2130 

160.  (a)   Petition  for  appointment  of  trustee  (Pa.) 2132 

161.  (b)   Bill  for  accounting  against  trustee  (Pa.) 2132 

162.  (c)   Bill  to  establish  constructive  trust  (Pa.) 2133 

163.  (a)   Petition  for  appointment  of  trustee  (E.  I.) 2134 

164.  (a)   Bill  for  appointment  of  trustee  (E.  I.) 2135 

165.  (b)   Bill  for  lemoval  of  trustee  (E.  I.) 2136 

166.  (c)    Bill  to  enforce  resulting  trust   (E.  1.) 2137 

167.  (a)   Bill  to  remove  trustee  under  deed  of  assignment  (W.  Va.)  .  .2137 

168.  (b)   Bill  to  enforce  express  trust  (W.  Va.) 2139 


CHAPTEE  LVI 

BILLS  TO  SET  UP  LOST  OE  DESTEOYED  DEEDS  OE  OTHEE 
IXSTEUMEXTS 

1C9.  Bill  to  f-et  up  lost  promissory  note  (111.) 2141 

170.  (a)   Bill  to  set  up  lost  deed   (Me.) 2142 

171.  (b)   Bill  to  recover  amount  due  on  bonds  lost  by  theft  (Me.)  .  .  .  .2143 

172.  Bill  to  set  np  lost  deed  or  other  instrument  (Md.) 2144 

173.  Bill  to  recover  possession  of  document  seized  by  grantor  (Mass.). 2144 

174.  Bill  to  set  up  deed  lost  or  destroyed  vrhile  in  grantor's  custody 

(Mich.)     2146 

175.  Petition   for  issue  of  stock  certificate  to  replace  lost  certificate 

(N.  H.)    2147 

176.  Bill  to  set  up  lost  or  stolen  bond  (Pa.) 2148 

177.  Bill  to  set  np  lost  deed  (E.  I.) 2149 

179.  Bill  to  set  np  a  lost  will  ( W.  Va.) 2150 


CHAPTEE  LVII 

BILLS   TO   EEFOEM   OE   CANCEL   WEITTEX    INSTEUMEXTS   FOE 
MUTUAL  MISTAKE  OE  FOE  FEAUD  IN  THE  CONSIDEEATION 

180.  (a)   Bill  by  grantor  to  reform  description  in  deed  (Del.) 2151 

181.  (b)   Bill  to  cancel  non-negotiable  obligation  and  restrain  action 

at  law   (Del.) 2152 

182.  (e)   Bill  to  cancel  release  (Del.) 2154 

183.  (a)   Bill  to  reform  instrument  l)y  adding  a  seal  (111.) 2156 

184.  (b)   Bill  by  lessee  to  cancel  lease  for  mutual  mistake  (111.) 2159 

185.  (a)   Bill  by   grantor  to   reform   deed  by  inserting  exception   of 

certain  lots   (Me.)    2161 

186.  (b)   Bill  to  correct  mistake  in  will   (Me.) 2162 

187.  (a)   Bill  to  reform  mistake  in  deed  or  other  instrument  (Md.) .  .  .2163 

188.  (b)   Bill  to  cancel  instrument    (Md.) 2164 

189.  (a)   Bill  by  grantor  to  reform  description  in  a  deed  (Mass.)  .  . .  .2164 

190.  (b)   Bill  to  cancel  discharge  of  mortgage  (Mass.) 2165 

191.  Bill  by  grantee  to  reform  description  in  deed  (Mich.) 2167 

192.  Bill  by  grantee  to  reform  description  in  deed  (N.  H.) 2168 

193.  Bill  by  grantee  to  reform  description  in  a  deed  (N.  J.) 2169 

194.  (a)   Bill   by   grantor  to   reform   deed  by  adding  reservation   of 

mineral  rights  (Pa.) 2172 

195.  (b)  Bill  to  cancel  receipt  given  by  mistake  (Pa.) 2173 

196.  (a)   Bill  by  grantor  to  have  absolute  conveyance  reformed  into 

mortgage    (E.    I.) 2175 

197.  (b)   Bill  by  grantor  to  cancel  trust  deed  (E.  I.) 2176 


Ixxxviii  FORMS 

FORM  PAGE 

198.  Bill  by   grantor  to   reform  deed  by  inserting  a  reservation  of 

timber  rights  (Vt.) 2178 

199.  Bill  by  grantor  to  reform  description  in  deed  (W.  Va.) 2179 

CHAPTER  LTIII 
BILLS  TO  EXJOIX  XUISAXCES 

200.  BUI  to  enjoin  obstruction  of  private  right  of  way  (DeL) 2182 

L'Ol.  Bill  by  adjoining  landowner  to  enjoin  illegal  saloon  (IlL) 2184 

'20'2.    (a)   BUI  by  riparian  owner  to  enjoin  poUution  of  river  (Me.).  ..2187 
202a.   (b)   BUI  after  judgment  to  compel  removal  of  an  encroachment 

upon  a  wharf   ^^Me.)    2188 

203.  BiU  bT  adjoining  land  owner  to  restrain  operation  of  max?hinerv 

(Md.)    '.2190 

204.  BUI  to  compel  removal  of  wall  encroaching  upon  land  with  regis- 

tered title  (Mass.) 2191 

205.  Petition  to  enjoin  gaming  and  liquor  nuisance  (X.  H.) 2192 

206.  Bill  by  property  owners  to  enjoin  slaughterhouse  (X.  J.) 2192 

207.  Bill  by  property  owner  to  enjoin  oU  refinery  (Pa.) 2194 

208.  BUI  by  adjoining  land  owner  to  enjoin  livery  stable  (K.  I.) 2197 

209.  BUI  by  citizen  to  enjoin  iUegal  saloon  (W.  Ya.) 219S 

CHAPTER  LIX 
BILLS  AXD   PETITIOXS   FOR   PAETITIOX   OF   REAL   ESTATE 

Jurisdiction  in  partition  of  real  estate  (Del.) 2201 

214.  BUI  for  partition,  for  accounting  bv  person  in  possession,  and  for 

receiver   (lU.)    " 2201 

215.  (a)  BUI  for  partition  by  sale  of  premises  (Me.) 2204 

216.  (b)  Bill  for  ].artition  by  sale  with  prayer  for  receiver  (Me.)  . .  .  .2205 

217.  BiU  for  partition  among  heirs  ( Md.) 2206 

Partition  i>roceediugs  among  heiis  or  tenants  in  common  (Mass.)  .2207 

218.  Bill  for  partition  among  heirs  (Mich.) 2207 

219.  (a)   BiU  for  partition  under  statute  (X'.  H.) 2208 

220.  (b)   Bill     for    partition    under    general    equitable    jurisdiction 

(X.  H.)    220S 

221.  Bill  for  sale  and  partition  among  heirs  (X.  J.) » 2209 

222.  Bill  for  partition  among  heirs   (Pa.) 2210 

223.  Bill  for  partition  between  tenants  in  common  (R.  I.) 2212 

224.  BiU  for  partition  among  heirs  (W.  Ya.) 2212 

CHAPTER  LX 
BILLS  FOR  DISSOLFTIOX  OF  PARTXERSHIP  AX'D  ACCOUXTING 

225.  Bill  by  partner  for  an  accounting  without  dissolution  (Del.).  ..  .2214 

226.  BUI  for  dissolution  of  partnership  and  accounting  (lU.) 2216 

227.  (a)   Bill  for  dissolution  of  partnership  where  impossible  to  con- 

tinue successfully   (>Ie.)    221S 

228.  (b)  BiU  for  dissolution  for  misconduct  of  partner  (Me.) 2219 

229.  (c)  Bill  seeking  partnership  account  after  dissolution  by  mutual 

consent  (Me.)    2220 

230.  BiU  for  the  dissolution  of  a  partnership,  for  a  receiver,  for  an 

order  to  bring  money  into  court,  and  for  an  injunction  (Md.).2221 

231.  BUI  for  dissolution  and  accounting  (Mass.") 2223 

232.  BUI  for  injunction,  receiver,  accounting  and  dissolution  (Mich.).  .2223 

233.  (a)   Partner's  bill  for  accounting  and  dissolution  (X.  H.) 2225 

234.  (b)  Partner's  bUl  for   dissolution   of  partnership  and  appoint- 

ment of  receiver  (X.  H.^ 2226 


CONTENTS  OF  VOLUME  III  Ixxxix 

FORM  PAGE 

235.  (c)   Creditor 's  bill  for   dissolution  of  partnership  and  account- 

ing  (i\.  H.;    2227 

236.  Bill  for  injunction,  receiver,  accounting  and  dissolution  (N.  J.)    . .  .2228 

237.  Bill  for  injunction,  receiver,  accounting  and  dissolution  (Pa.)     .  . .  .2230 

238.  Bill  for  injunction,  receiver,  accounting  and  dissolution  (K.  I.)     .  .  .2231 

239.  Bill  for  injunction,  receiver,  accounting  and  dissolution  (Vt.)     .  . .  .2232 

240.  Bill  for  injunction,  receiver,  accounting  and  dissolution  (  W.  Va.)    .2235 

CHAPTER  LXI 

BILLS  TO  ENJOIN  ACTIONS  AT  LAW  OR  TO  RESTRAIN  THE 
ENFORCEMENT  OF  JUDGMENTS 

241.  Bill  to  restrain  enforcement  of  scire  facias  (Del.) 2237 

242.  Bill   to   enjoin   tlie   entering  of   judgment  after  verdict   and   to 

establish  an  equitable  set-off    (Fla.) 2240 

243.  Bill  to  restrain  enforcement  ot  writ  of  restitution  (HI.) 2242 

244.  Bill  to  restrain  enforcement  of  paid  judgment  (Me.) 2243 

245.  Bill  by  discharged  insolvent  debtor  to  restrain  enforcement  of  a 

judgment  (Md.)    2244 

246.  Bill  to  enjoin  action  at  law  on  written  contract  (Mass.) 2244 

247.  Bill  to  enjoin  action  at  law  on  replevin  bond  (Mich.) 2246 

248.  Bill  to  enjoin  action  at  law  (N.  H.) 2247 

249.  Bill  to  enjoin  action  at  law  (N.  J.) 2249 

250.  Creditors '  bill  to  restrain  enforcement  of  judgment  obtained  in 

fraud  of  creditors  (Pa. ) 2252 

251.  Bill   by   defendant   in   action   at  law,   not  properly   served  with 

process  therein,  to  eujoin  the  action  at  law  (R.  I.) 2253 

252.  Bill  to  enjoin  action  at  law  upon  a  fraudulent  award  by  arbitra- 

tors  (Vt.)    2255 

253.  Bill  to  restrain  enforcement  of  fraudulent  judgment  (W.  Va.)  . .  .2257 

CHAPTER  LXII 
BILLS  TO  REMOVE  CLOUDS  ON  TITLE 

254.  Statutory  bill  to  quiet  title  (Ala.) 2259 

255.  Bill  by  devisees  to  remove  cloud  on  title  caused  by  ambiguity  in 

wUl  (Del.)    2259 

256.  Bill  to  remove  cloud  on  title  (Fla.) , 2261 

257.  Bill  to  remove  cloud  on  title  caused  by  tax  deeds  (HI.) 2263 

258.  Bill  to  reuiove  and  prevent  cloud  on  title  caused  by  unrecorded 

deed  (Me.)  2265 

259.  Bill  to  remove  cloud  on  title  caused  by  recorded  but  undelivered 

trust  deed  (Alass.)   2266 

260.  Bill  to  remove  cloud  on  title  caused  by  recorded  voluntary  deed 

(Md.)    2268 

260a.  Bill    to   cancel   laps-ed    option    agreement   as    a   cloud    on    title 

(Mich.)     2269 

261.  Bill  to  remove  cloud  on  title  (N.  J.) 2270 

262.  Bill  by  devisee  to  remove  cloud  on  title  (Pa.) 2271 

Bill  to  remove  cloud  on  title  (R.  I.) 2272 

263.  Bill  to  remove  cloud  on  mortgagee 's  foreclosure  title  caused  by 

mortgagor 's  subsequent  deed  ( Vt.) '2272 

264.  Bill  to  remove  cloud  on  mortgagee's  foreclosure  title  caused  by  a 

subsequent  chancery  proceeding  (W.  Va.) 2274 

CHAPTER  LXIII 
BILLS  FOR  CONSTRUCTION  OF  WILLS 

265.  Bill  of  interpleader  and  for  construction  of  will  (Del.) 2277 

265a.  Bill  by  testamentary  trustees  for  instructions  and  for  construc- 
tion of  will  (  111.) 2279 


xc  FORMS 

POBM  PAGE 

266.  (a)  Bill  bv  legatee  for  eonstniction  of  will  (Me.) 22S1 

267.  (b)  Bill  by  testaaientarv  trustee  tor  eonstiuetion  of  will  and  tor 

permission  to  change  investments  i.Me.) 2282 

268.  Bill  to  construe  a  will,  and  lor  lurther  administration  in  a  court 

of  equitv  (Md.) 2284 

269.  BUI  by  testamentary  trustees  for  instructious  regarding  payment 

of  interest   (Mass.)    22S5 

270.  (a)  Bill  for  construction  of  will  (N.  H.) 22iS 

271.  (b)   Bill  to  construe  and  annul  condition  in  deed  (X.  H.) 22^S 

272.  Bill  by  testamentary  trustees  for  instructions  respecting  distribu- 

tion of  a  fund  (N.  J.) 22S9 

Bills  for  the  construction  of  wills  not  used  (Pa.) 2290 

273.  Bill  for  construction  of  will  (R.  I.) 2291 

274.  Bill  to  have  a  clause  of  a  will  declared  void  as  creating  a  per- 

petuity (W.  Va.) 2292 


CHAPTER  LXIY 

BLLLS   AND  PETITIONS   FOR   THE   DISSOLUTION   OF   CORPORA- 
TIONS AND  FOR  THE  APPOINTMENT  OF  RECEIVERS 
OF  INSOLVENT  CORPORATIONS 

275.  (a)   BUI  for  the  appointment  of  receiver  of  insolvent  corporation 

(Del.)    2294 

276.  (b)  Bill  to  dissolve  banking  or  insurance  corporation  (Del.)  . . .  .2295 

277.  Creditors'  bill  for  dissolution  of  corporation  and  to  enlorce  stock- 

holders '  liability  ^ HI.)   2296 

278.  (a)  BUI  for  dissolution  of  corporation  with  assets  (Me.) 22yS 

279.  (b)  Bill  for  dissolution  of  corporation  without  assets  (Me.) 2299 

280.  (c)  BiU  bv   insuLrance  commissioner  to  dissolve  insurance  com- 

pany (Me.)    2299 

281.  (d)   BUI  by  ba'nk  examiner  to  dissolve  savings  bank  (Me.) 2300 

282.  (e)  BiU  for  dissolution  of  corj  oration  under  pubUc  laws  of  1905, 

Ch.  So.  (Me.) 2301 

.  283.   (a)  Bill  for  dissolution  of  corporation  (Md.) 2302 

284.  (b)   Creditors'  biU  for  dissolution  and  for  appointment  of  re- 

ceiver of  insolvent  corporation  (Md.) 2303 

285.  (a)  Petition  for  dissolution  of  corporation  (Mass.) 2304 

286.  (b)  Stockholders*  petition  for  receivership  to  preserve  assets  of 

corporation  (Mass.)   2304 

287.  BiU  for  dissolution  of  corporation  (Mich.)   2305 

258.  Petition  for  dissolution  of  corpK)ration  (N.  H.) 2306 

259.  BUI  for  appointment  of  receiver  of  insolvent  corporation  (N.  J.)  .2307 

290.  Petition  for  dissolution  of  corporation  (Pa.) 2309 

291.  (a)  Petition  for  dissolution  of  corporation  (R.  I.) 2310 

292.  (b)  Petition  for  appointment  of  receiver  of  insolvent  corporation 

(R.  L)   2311 

293.  (1)   Creditor 's  bill  to  dissolve  a  corporation  (W.  Va.) 2312 

294.  (2)   Creditor's   bill    to    reach    propertv    of    expired   corporation 

(W.  Yh.)    ! 2314 


CHAPTER  LXV 
CREDITORS'   BILLS    TO    ENTOECE    STOCKHOLDERS'    LIABILITY 

295.  BiU   to   enforce  stockholders'  liabUity  and  for  appointment  of 

receiver  of  defunct  corporation  ( lU.) 231 7 

296.  BUI  to  en-.orce  stockholders '  liabUitv  (Me.) 2319 

297.  Bin  by  receiver  to  enforce  stockholders'  liabUity  (Md.) 2321 

298.  Bill  to  enforce  double  liabiUty  of  stockholders  in  a  banking  cor- 

poration  ( Mass. )    2322 


CONTENTS  OF  VOLUME  111  xci 

rORM  PAGE 

299.  Bill  to   enforce   stockholders'  liability,  lor  accounting,   and  for 

appointment  of  receiver   (Mich.) 232o 

300.  Bill   to   enforce   stockholders'    liability   and   for   appointment   of 

receiver  (N.  H.)   2326 

Bill  by  receiver  (N.  J.) 2328 

301.  Bill  by  assignees  lor  creditors  to  enforce  double  liability  of  stock- 

holders of  insolvent  bank  (Pa.) 2329 

302.  Bill  to  enforce  stockholders '  liability  (R.  I.) 2330 

303.  Creditors'  bill  to  enforce  stockholders'  liability  in  an  insurance 

company   ( Vt. )    2331 

CHAPTER  LXA^I 
BILLS  TO  ENFORCE  LIENS 

304.  Bill  to  enforce  tax  lien  (Fla.) 2334 

305.  Bill  to  enforce  a  lien  under  mechanics'  lien  law  (111.) 2335 

306.  Bill  to  enforce  lien  on  building  and  lot  under  R.  S.  (1903)   Ch. 

93,  Sees.  29-31   (Me.) 2337 

307.  Bill  to  enforce  a  lien  under  mechanics'  lien  law  (Md.) 2339 

308.  Bill  to  enforce  lien  on  security  (Mass.) 2339 

309.  Bill  to  enforce  a  lieu  for  materials  (Mich.) 2342 

Enforcement  of  liens  (Pa.)   2344 

310.  Bill  to  enforce  a  lien  for  materials  and  labor  and  to  cancel  a  vol- 

untary deed  as  against  the  lienholder  (R.  I.) 2344 

311.  (1)   Creditors'  bill  to  enforce  a  judgment  lien  (W.  Va.) 2347 

312.  (2)   Bill  to  enforce  mechanics'  iien  (W.  Va.) 2348 

CHAPTER  LXVII 
BILLS  OF  INTERPLEADER 

Bill  for  construction  of  will  (Del.) 2350 

313.  Bill  of  interpleader  in  respect  to  sum  due  under  building  contract 

(111.)    2350 

314.  Bill  of  interpleader  in  respect  to  savings  bank  deposit  (Me.) 2352 

315.  Bill  of  interpleader  in  respect  to  bank  deposit  (Md.) 2353 

316.  Bill  of  interpleader  in  respect  to  shares  of  stocks  (Mass.) 2355 

317.  Bill  of  interjileader  in  respect  to  sum  due  for  purchase  price  of 

chattels  (Mich.)    2356 

318.  Bill  of  interpleader  in  respect  to  dividends  due  on  shares  of  stock 

(N.  H.) 2357 

319.  Bill  of  interpleader  by  fire  insurance  company  (N.  J.) 2358 

320.  Bill  of  interpleader  in  respect  to  savings  bank  deposit  (Pa.) 2361 

321.  Bill  of  interpleader  in  respect  to  bank  deposit  (R.  I.) 2362 

322.  Bill  of  interpleader  in  respect  to  sum  due  on  a  promissory  note 

(Tenn.)   2364 

323.  Bill  of  interpleader  in  respect  to  sum  due  from  vendee  of  real 

estate  (W.  Va.)  2365 

CHAPTER  LXVTII 
SUPPLEMENTAL  BILLS 

324.  Supplemental  bill  by  assignee  (HI.) 2368 

325.  (a)   Supplemental  bill  against  trustee  of  a  bankrupt  (Me.) 2369 

326.  (b)   Bill  of  revivor   (before  decree)  by  the  administrator  of  the 

plaintiff  in  the  original  suit    (Me.) 2369 

327.  Supplemental  or  amended  bill  to  add  a  party  (Md.) 2370 

828.  Supplemental  bill  ior  relief  in  respect  to  facts  occurring  subse- 
quent to  filing  of  original  bill  (Mass.) 2370 


xeii  FORMS 

FOKM  PAGX 

339.  Saqpidemental  bill  to  enjoin  suit  at  bnr  brons^  by  defendant  sob- 

eeqoent  to  filing  of  original  bill  (Mieli.) 2372 

330.  Addition  bj  waj  of  sapplemoit  to  bill  of  complaint  (X.  J.) 2373 

331.  Supplemental  bill  aftor  decree  (Pa.) 237-( 

332.  Motion  in  Sapeiior  Oooit  to  lerire  case  iriuch.  vas  di^toeed  of  bj 

final  decree  in  i^pdlate  diriaon  of  Sopreme  Ooort  (R.  L) 2375 

333.  (a)  Sopi^emental  bill  against  trustee  in  bankruptcy  (Tenn.) 2376 

334.  (b)  Sapplemental  bill  of  reviror  against  the  beiis  of  deceased 

mortgagor  (Tenn.) 2376 

333.  Sn^pianaital  biU  to  add  new  parties  (W.  Ta.) 2377 


CHAPTEB  T.Xry 
CBOS8  BILLS 

336l  Cross  bill  aaldng  intex^eader  (HL) 2378 

337.  (a)  Choss  bffl  for  defence  merely  (Me.) 2379 

338.  (b)  Graes  biU  for  aflumatiTe  relief  (Me.) 2380 

339.  G^nofiS  bill  denying  abandonment  and  praying  for  diroree  a  acnaa 

et  Ihoro  on  the  groond  of  crafty  (Md.) .2380 

340.  Cross  bill  for  affirmatire  rdief  (Mass.) S381 

341.  Ckoss  biQ  to  oijoin  proceedings  im  original  bill  and  to  remoTe 

elorad  on  title  (N.  H.) 2383 

342.  CroCT  bin  (by  minor  defendant)  (X.  J.) 2384 

343.  Cross  biD  to  set  op  rdease  (Pa.) 2384 

Cross  4»ills  not  necessary  (B.  I.) 2385 

344.  Cross  bill  to  set  np  rdease  (Tom.) 2385 

345.  Formal  parts  of  cross  bifl  (Tt ) 2386 

346.  Goss  bin  for  affirmatiro  rdief  (W.  Ta.) 2386 

CHAPTEB  LXX 
BILLS  OF  REVIEW 

347.  (a)  Bin  for  review  for  both  error  appaieeat  and  newhr  discov- 

ered evidence  (in.)  2389 

34S.  (b)  Bin  in  the  nature  of  review  to  impeaueh  a  decree  for  fraud 

(HL) 2390 

349.  (a)  Bin  of  review  for  error  apparent  (Me.) 2392 

330.  (b)  Petition  for  leave  to  file  bin  of  review  on  discovery  of  new 

matter  {Me.)  2393 

351.  (c)  Bin  of  review  on  dmeorery  of  new  matter  (Me^) 2393 

352.  (d)  Bin  to  impeach  decree  for  fraud  (Me.) 2394 

353.  (e)  Petition  for  review  on  ground  of  fraud,  accident  or  nustake, 

under  K  S.  Ch.  79,  See.  38  (Me^) 2395 

354.  Bin  of  review  on  discovery  of  new  mattra-  (Md.) 2396 

355.  (a)  Bm  of  review  for  error  apparent  (Ma^) 2397 

356.  (b)  Bin  of  review  in  romnw  law  judgment  tm  discovery  of  new 

matter  (Mam.) 2399 

357.  (a)  Bin  of  review  on  dfficovery  of  new  matter  (Mich.) 2400 

358.  (b)  Bin  of  review  for  error  apparent  (IGeh.) 2401 

339.  (a)  Bin  of  review  for  error  apparent  (H.  J.) 2402 

360.  (b)  Bin  of  review  on  discovery  of  new  matter  (N.  J.) 2402 

361.  Bin  of  review  of  decree  allowing  trustee's  account  (Pa.) 2403 

362.  Bin  for  review  on  discovery  of  new  matter  (B.  L) 2404 

363.  Bin  of  review  for  error  a^paroit  (Tenn.) 24&4 

3©L  Bin  of  review  for  error  apparent  in  decree  pro  corferfo  (TT.  Va.)  .2405 


CONTENTS  OF  VOLUME  III 


XCIH 


CHAPTER  LXXI 

DEMUREEES 

GENERAL  FORMS  FOE  CAUSES  OF  DEMUEEEE  APPLICABLE  IN 
MOST  JURISDICTIONS 

FORM  PAGE 

365.  General  demurrer  to  the  whole  liill  for  want  of  equity 2407 

Special  Demurrers  to  the  Jurisdiction 


366. 
367. 
368. 


369. 
370. 
371. 

372. 

373. 
374. 

375. 

376. 
377. 

378. 
379. 

380. 

381. 

381a, 

382. 

383. 

384. 

385. 

386. 

387. 

388. 

389. 

390. 

391. 

392. 


1)  Subject  matter.     Adequate  remedy  at  law 2407 

2)  Person.     Want  of  next  friend  or  guardian  in  bill  by  infant.  .2407 

3)  Amount.     Sum  involved  beneath  dignity  of  court 2407 

Special  Demurrers  to  the  Substance 

4)  Want  of  interest  in  the  plaintitf  on  1)111  to  redeem 2408 

5)  Want  of  privity 2408 

6)  Want  of  interest  in  defendant,  who  is  mere  servant  or  agent.  2408 

7)  Want   of  claim   of   interest  by   defendant  in  bUl   of  inter- 

pleader  2408 

8)  Wrong  special  prayer  without  a  general  prayer 2408 

9)  Want   of  particular   allegation  of  notice  in  bill  to  reform 

deed     2409 

10)  W^ant  of  allegation  that  title  has  been  previously  established 

at  law  in  bill  to  restrain  nuisance 2409 

11)  Want  of  oft'er  to  pay  amount  due  on  bill  to  redeem 2409 

12)  W^ant  of  allegation  of  i>roof  of  will  and  qualification  as  ex- 

ecutor in  bill  by  latter 2409 

13)  Allegation  of  mere  information  and  belief  of  facts 2409 

14)  For  want  of  necessary  party 2410 

15 )  For  multifariousness   2410 

16)  On  the  ground  of  the  statute  of  limitations 2410 

(16a.)   On  the  ground  of  laches 2410 


On  the  ground  of  the  statute  of  frauds 2410 

Former  suit  pending 2411 

Failure  to  state  plaintiff 's  residence 2411 

Want  of  certainty 2411 

Want  of  special  prayer 2411 

Want  of  prayer  for  process 2411 

Want  of  any  signature 2411 

Want  of  verification  to  bill  for  injunction 2412 

Want  of  affidavit  denying  collusion  on  bill  of  interpleader. 2412 
Demurrer  for  several  causes 2412 


General  form  of  protestation  clause 2412 


SPECIAL  FOEMS  FBOM  VAEIOUS  STATES 

393.  Demurrer  for  several  causes  (Ala.) 2413 

394.  Demurrer  to  bill  for  specific  performance  (Del.) 2413 

395.  Demurrer   (Fla.)   2414 

396.  Demurrer  (111.)   2414 

397.  (a)   Formal  parts   (Me.) 2415 

398.  (b)   Demurrer  to  part  of  bill  and  answer  to  residue  (Me.) 2416 

399.  (c)   Demurrer  inserted  in  answer  (Me.) 2416 

400.  Demurrer    (Md.) 2416 

401.  Demurrer  to  cross  bill  (Mass.) 2417 

402.  (a)   General  demurrer   (Mich.) 2417 

403.  (b)   Special  demurrer   (Mich.) 2418 

404.  Demurrer   (N.  H.) ~ 2418 

405.  Demurrer   (N.  J.) 2419 

406.  Demurrer   (Pa.)    2419 


xciv  FORMS 

FORM  PAGE 

4(17.  Special  donarrer  (R.  I.) 2420 

40S.  Itemmrer  and  answer  (Tenn.) 2421 

409.  Demurrer    (  Vt.) 2422 

410.  (a)  Statutory  lorm  of  demurrer  ( W.  Va.) 2422 

411.  (b)  Common  form,  assigning  grounds  (W.  Va.) 2423 

CHAPTEE    LXXII 

PLEAS 

GENERAL  FORMS  OF  GROUNDS  OF  PLEAS 

To   THE    PeBSOX 

412.  (1)  Plea  of  infaney  to  bill  without  next  friend  or  guardian. . .  .2424 

413.  (2)  Plea  of  insanity  to  bill  without  guardian 2424 

414.  (3)  Plea  that  plaintiff  is  not  administrator  as  allege*! 2424 

415.  (4)  Want  of  interest  in  plaintiff 2424 

To  THE  Bnj. 

416.  (5)  Plea  of  another  suit  pending. 2425 

417.  (6)  Want  of  necessary  party 2425 

Pleas  ix  Bar 

418.  (7)  Plea  of  statute  of  limitations 2425 

419.  (7a)  Another  form  for  plea  of  statute  of  limitations 2426 

420.  (S)  Plea  of  statute  of  frauds 2426 

421.  (8a)  Another  form  for  pka  of  statute  of  frauds 2426 

422.  (9)  Plea  of  re«  adJHdifota 2426 

423.  (10)  Plea  of  release  supported  br  answer  denring  allegations  of 

fraud    .' .*. 2427 

424.  (11)  Plea  of  account  stated  and  settled 2427 

425.  (12)  Plea  of  bona  fide  purchase  for  value 2428 

426.  (12a)  Another  form  of  the  plea  of  bona  fide  purchase  for  value. 242S 

427.  (12b)  Another  form  of  plea  of  bona  fide  purchase  for  value. . .  .2429 

428.  (12e)  Another  form  of  plea  of  bona  fide  purchase  for  value 2429 

429.  (13)  Plea  of  an  award 2429 

430.  (13a)  Another  form  of  plea  of  an  award 2430 

GENERAL  FORMS  FOE  FOBMIAL  PARTS  OF  PLEAS 

431.  General  form  for  protestation  clause 2430 

432.  Plea  to  part  and  answer  to  residue 2431 

433.  Demurrer  to  one  part,  plea  to  another  and  answer  to  residue. . .  .2431 

434.  Plea  inserted  in  an  answer 2431 

SPECIAL  FORMS  OF  PLEAS  FROM  VARIOUS  STATES 

435.  (a)  Plea  to  the  jurisdiction  (ID.) 2432 

436.  (b)  Plea  of  another  action  pending  (IlL) 2433 

437.  Plea  to  whole  bill  (Me.) .2434 

438.  Plea  to  the  jurisdiction  in  abatement  (Md.) 2435 

439.  Plea  in  abatement  (Mass.^ 2435 

440.  Plea  to  the  jurisdiction  (Mich.) 2436 

441.  (a)  Hea  to  the  jurisdiction  (N.  H.'l 2437 

442.  (b)  Plea  of  bona  fide  purchase  to  bill  to  foreclose  mortgage 

.  N.  H.) 2438 

443.  Plea  in  abatement  (N.  J.) 2439 

444.  Joint  and  several  plea  (Tenn.) 2440 

445.  Plea  to  the  whole  bifl  (W.  Va.) 2440 


CONTENTS  OF  VOLUME  III 


xcv 


CHAPTER    LXXIII 

ANSWERS   AND   REPLICATIONS 

GENERAL  FORMS  FOR  COMMENCEMENT  OF  ANSWERS 

PAGE 

Joint  and  several  answers 2441 

Further  answer 2441 

Further  answer  to  original  hill  and  answer  to  amended  bill.  .2441 

By  partners 2441 

By  surviving  partner 2441 

By  corporation   2441 

By  town,  city  or  county 2441 

By  person  misnamed  in  the  Itill 2442 

By  executor  or  administi'ator 2442 

)    By  trustee  in  bankruptcy 2442 

)   By  a  minor 2442 

)   By  insane  person 2442 

GENERAL  FORMS  FOR  F0R:\1AL  PARTS  OF  ANSWERS 

458.  General  form  for  defensive  allegation  in  answers  to  matters  which 

might  have  been  taken  advantage  of  by  demurrer  or  plea 2442 

459.  General  form  for  prayer  for  issues  to  jury  to  be  inserted  at  end 

of  answer  when  desired  by  defendant 2442 

460.  General  form  of  protestation  clause 2443 

461.  General  form  for  answer  as  a  demurrer  to  bill  of  complaint 244.'5 

462.  General  form  for  confederacy  clause 2443 

463.  General  form  for  disclaimer 2443 

GENERAL  FORMS  FOR  REPLICATIONS 

464.  (1)    Early  chancery  form  for  replication 2444 

465.  (2)    Short  form  for  replication 2445 

465a.    (3)   Form  for  prayer  for  issues  to  jury,  to  be  inserted  at  end  of 

replication   2445 


446. 

(1) 

447. 

(2) 

448. 

(3) 

449. 

(4) 

450. 

(5) 

451. 

(6) 

452. 

(7) 

453. 

(8) 

454. 

(9) 

455. 

(10 

456. 

(11 

457. 

(12 

466. 
467. 
468. 
469. 
470. 
47L 
472. 
473. 
474. 
475. 
476. 
477. 
479. 
480. 
481. 
482. 
483. 
484. 


485. 
486. 


SPECIAL  FORMS  FROM  VARIOUS  STATES 

a)  Formal  parts  to  answers  (Ala.) 2445 

b)  Form  for  answer  of  guardian  ad  litem  (Ala.) 2446 

c)  Form  for  answer  to  be  taken  as  cross  bill  (Ala.) 2446 

1)  Answer  to  bill  for  specific  performance  (Del.) 2446 

2)  Answer  to  bill  to  enforce  constructive  trust  (Del.) 2448 

3)  Answer  to  bill  to  cancel  release  (Del.) 2449 

4)  Answer  to  bill  to  cancel  instrument  (Del.) 2451 

5)  Answer  to  bill  for  enjoining  private  nuisance  (Del.) 2453 

6)  Answer  to  bill  for  accounting  between  partners  (Del.) 2455 

7)  Answer  to  bill  to  restrain  ;K-tion  at  law  (Del.) 2457 

8)  Answer  to  bill  to  remove  cloud  on  title  (Del.) 2459 

9)  Answer  to  bill  for  construction  of  will,  etc.  (Del.) 2459 

11)  Answer  to  bill  for  dissolution  of  bank  (Del.) 2460 

12)  Answer  to  bill  for  appointment  of  receiver  (Del.) 2461 

1)  Disclaimer  and  answer  to  bill  to  enforce  tax  lien  (Fla.) 2461 

2)  Replication  (Fla.)    2462 

Answer  to  bill  for  foreclosure  of  mortgage  (111.) 2462 

a)  Formal  parts  to  answers  (Me.) 2465 

b)  Forms   and  precedents   for  substantial   portions   of   answers 

(Me.) 2466 

1)  Answer  to  bill  to  redeem  after  demand  and  refusal  to  ac- 

count (Me.)   2466 

2)  Answer  to  bill  seeking  specific  performance  (Me.) 2466 


XCVI 


FORMS 


FORM  PAGE 

487.  (,3)  Answer  and  disclaimer  of  one  defendant  to  bill  for  partition 

^.Me.) 2467 

488.  (4)  Answer  of  principal  defendant  to    same    bUl    for    partition 

(Me.; 2467 

489.  (5)   Answer  to  bill  lor  cancellation  on  ground  of  fraud  (Me.)  . .  .246S 

490.  (6)   Answer  to  bill  to  set  aside  fraudulent  oonveyanee  ^Me.) .  . .  .2469 

491.  (7)  Answer  to  creditor's  bill  to  reach  and  applv  propertv  which 

cannot  be  come  at  to  be  attached  ^,Me.) 2469 

492.  (8)  Answer  to  bill  to  reform  mistake  in  deed  vMe.) 2470 

493.  (9)   Answer  to  bUl  for  construction  of  wUl  (Me.) 2472 

494.  (10)  Answer  of  administrator  to  same  bill  for  construction  of 

will  i,Me.) 2472 

495.  (11)   Answer  to  hUl  to  enforce  lien  on  building  (Me.) 2472 

496.  (a)   General  form  of  answer  to  bill  (Md.) 2473 

497.  (b)   General  replication  (Md.)   2473 

498.  (c)  Answer  to  bUl  of  complaint  and  consent  to  decree  (Md.)  . . .  .2474 

499.  Answer  tx>  biU  to  establish  constructive  trust  \^Ma5s.) 2474 

499a.   (a)  General  form  of  answer  prescribed  bj  equity  rides  (N.  H.)  .2475 

500.  (b)  Answer,  including  plea,  demurrer,  and  prarers  for  affirmative 

relief  (N.  H.)    •- '. '. 2476 

501.  (c)  Answer  to  bill  for  dissolution  of  partnership  (X.  H.) 2476 

502.  (d)  Answer,  including  plea  and  demurrer  (N.  H.) 2476 

503.  (e)  Answer  to  petition  for  appointment  of  trustees  with  prayer 

lor  reduction  in  number  of  trustees  (^X.  H.) 2477 

(f)  Rule  of  court  regarding  replications  (X.  H.) 247S 

504.  (g)   Beplication  to  answer  to  bUl  for  foreclosure  (X.  H.) 2478 

505.  (1)  Answer  to  bUl  for  specific  pertomiance  (X.  J.) 2478 

506.  (2)  Replication  to  the  above  answer  (X'.  J.) 24-Sl 

507.  (3)   Answer  to  bUl  to  set  aside  conveyance  in  fraud  of  creditors 

(X.  J.) .' 24S2 

508.  (4)   Another  answer  to  the  same  bill  (X.  J.) 24S4 

509.  (5)   Answer  to  biU  to  establish  trust  and  appoint  trustee  (X.  J.)  .24S6 

510.  (6)  Answer  fo  bill  for  reformation  of  a  deed  (X.  J.) 24S6 

511.  (7)   Replication  to  the  above  (X.  J.) 24S9 

512.  (8)   Answer  to  bill  to  restrain  action  at  law  (X.  J.) 24S9 

514.  (9)  Amended  answer   (^X.  J.) 2493 

515.  General  form  for  answers  (Pa.> 2493 

516.  (a)   Answer  to  bQl  for  redemption  from  mortgage  (B.  I.) 2494 

517.  (b)   Answer  to  bill  for  specific  performance  (R.  1.) 2495 

518.  (c)  Answer   to  bUl   against  corporation  and  officers  in  control 

(R.  1.1   2496 

519.  (a)  Form  of  answer  i  Tenn.) 2497 

520.  (b)   Answer  by  an  infant  (  Tenn.) 2497 

521.  Answer  to  creditor's  biU  to  enforce  stockholder's  liability  (Tt.).2498 

522.  (a)   Formal  parts  to  answers  (W.  Va.) 2500 

523.  (b)  Form  for  answer  with  aUegations  and  praver  for  affimative 

reUef  (W.  Ya.)  '. 2-500 

524.  (c)  Special  replv  to  answer  with  praver   for  affirmative  relief 

vW.  Ya.1  '. ' 2501 

525.  (d)  Answer  to  bill  for  specific  i>erformance  (W.  Va.) 2501 

526.  (e)   Answer  to  bUl  to  set  aside  fraudulent  conveyance  (W.  Va.).2502 

527.  (f)   Answer  to  bUl  to  reform  a  deed  (W.  Va.) 2504 

528.  (g)   Answer  to  biU  for  partition  C  W.  Va.) 2506 

529.  (h)  Answer  to  biU  to  remove  cloud  (W.  Va.) 2508 

530.  (i)    Answer  to  bUl  to  contest  wUl  (W.  Va.) 2510 


CHAPTER    LXXR' 
DECTiEES    OF    DISMISSAL 


531.  Decree  dismissing  biU  after  hearing  (Ala.) 2511 

532.  Consent  decree  dismissing  bill  (Del.) 2511 


CONTENTS  OF  VOLUME  III 


XCVll 


FORM  PAGE 

533.  Decree  dismissing  bill  on  motion  of  complainant  before  answers 

filed  (i'ki.) 2512 

53i.  Consent  decree  dismissing  bill  alter  bill  and  cross  bill  (HI.) 2512 

535.  (a)   Ordinary  decree  dismissing  bill   (Me.) 2513 

536.  (b)   Consent  decree  dismissing  bill   (Me.) 2513 

537.  (c)   Decree  dismissing  bill  where  person  appears  at  hearing  and 

submits  to  be  bound  (Me.) 2513 

537a.  Consent  decree  dismissing  bill  (Mass.) 2514 

538.  Consent  decree  dismissing  bill  (Mich.) 2514 

539.  Consent  decree  dismissing  bill  (N.  H.) 2515 

540.  Decree  dismissing  bill  after  hearing  (N.  J.) 2515 

541.  Decrees  dismissing  bill   (Pa.) 2515 

542.  Consent  decree  dismissing  bill  (R.  I.) 2516 

543.  Decree  dismissing  bill  after  hearing  (W.  Ya.) .-.  .2516 


CHAPTER    LXXV 


DECREES 


544. 

545. 

546. 

547. 
548. 
549. 

550. 

551. 
552. 
553. 
554. 
558. 
559. 
560. 
561. 
562. 
563. 
564. 
565. 
566. 

567. 

568. 
569. 

570. 
571. 
572. 
573. 
574. 

575. 

576. 
577. 


1 )  Decree  on  bill  by  an  heir  s-eeking  to  remove  an  administration 

into  cham-ery  (Ala.)    2518 

2)  Decree   ordering   allotment   of   dower   bv   metes   and   bounds 

(Ala.)    '. 2520 

3)  Decree    appointing    commissioner    to    set    apart    homestead 

(Ala.)   2521 

4)  Decree  confirming  report  of  commissioners  (Ala.) 2522 

5)  Decree  for  sale  for  division  (Ala.) 2522 

6)  Decree  confirming  sale  of  real  estate  for  division  and  order- 

ing reference  for  fees   (Ala.) 2524 

7)  Decree  confirming  report  of  register  on  reference  and  order- 

ing distribution   (Ala.)    2524 

1)  Decree  on  foreclosure  bill  (Del.)    2525 

2)  Decree  of  foreclosure  and  sale  (Del.) 2526 

3)  Decree  on  bill  to  enforce  constructive  trust  (Del.) 2532 

4)  Decree  on  bill  to  enjoin  private  nuisance  (Del.) 2532 

5)  Decree  on  bill  for  construction  of  will,  etc.     (Del.) _.  .  .2533 

1)  Decree  on  foreclosure  bill  (Fla.) 2533 

2)  Decree  on  bill  of  interpleader  (Fla.)   .  : 2536 

3)  Decree  on  injunction  bill  (Fla.) 2536 

4)  Decree  for  removal  of  cloud  from  title  (Fla.) 2537 

1)  Decree   of   redemption    (111.) 2538 

2)  Decree  of  foreclosure  (111.) 2539 

3)  Decree  on  bill  for  construction  of  will  (111.) 2546 

1)  Decree  on  bill  to  redeem  with  a  reference  to  a  master  to  take 

the  account   (Me.)    2548 

2)  Decree  on  bill  to  redeem,  when  sum  due  is  determined  by 

court  (Me.)    2540 

3)  Decree  of  strict  foreclosure  (Me.) 2549 

4)  Decree  of  foreclosure  by  judicial  sale,  wMth  execution  for  de- 

ficiency ( Me. )    2550 

5)  Decree  of  foreclosure  of  railroad  mortgage  (Me.) 2550 

6)  Decree  on  bill  to  relieve  from  forfeiture  (Me.)  .  .  .  .» 2550 

7)  Decree  of  specific  performance  (Me.) 2551 

8)  Decree  on  bill  for  cancellation  of  void  deed  (Me.) 2551 

9)  Decree  on  bill  by  minority  stockholders  against  corporation 

and  directors  alleging  fraudulent  conspiracy  (Me.) 2551 

10)  Decree  on  bill  by  trustee  in  bankruptcy  for  reconveyance  on 

ground  of  fraud  (Me.) 2552 

11)  Decree  on  bill  to  set  aside  fraudulent  conveyance  (Me.) .  .  .2552 

12)  Decree  on   creditor's  bill  to  reach  and  apply  property  of 

debtor  (Me.)    2552 


XCVIU 


FORMS 


FORM 

578. 

:i3) 

579. 

.14) 

580. 

'15) 

581. 

(16) 

582. 

'17) 

583. 

'18) 

584. 

;i9) 

585. 

'20) 

586. 

21) 

587.   < 

.22) 

588.   ( 

23) 

589. 

24) 

590. 

,25) 

591. 

'26) 

592. 

27) 

593.   ( 

28) 

594. 

29) 

595. 

30) 

596. 

31) 

597. 

32) 

598. 

33) 

599. 

34) 

600. 

35) 

601.   (36) 


602. 

(37) 

603. 

(38) 

604. 

(39) 

605. 

(40) 

606. 

(41) 

607. 

(1) 

608. 

(2) 

609. 

(3) 

610. 

(4) 

611. 

(5) 

612. 

(6) 

613. 

(1) 

614. 

(2) 

615. 

(3) 

616. 

(4) 

617. 

(5) 

618. 

(6) 

619. 

(7) 

620. 

(8) 

621. 

(9) 

PAGE 

Decree  appointing  trustee  in  place  of  sole  trustee,  deceased 

(Me.)    - 2553 

Decree  appointing  two  new  trustees  and  directing  convey- 
ance by  survivor  (Me.)   2553 

Decree  removing  trustee  (Me.)    2554 

Decree  on  hill  to  enforce  a  resulting  trust  for  money  had 

and  received   (Me.) 2554 

Decree  on  bill  to  enforce  oral  declaration  of  trust  (Me.)  .  .  .2534 

Decree  on  bill  to  set  up  lost  deed  (Me.) 2555 

Decree  on  bill  to  recover  amount  due  on  bonds  lost  by  theft 

(Me.) 2555 

Decree  on  bill  to  reform  mistake  in  deed  (Me.) 2555 

Decree  on  bill  to  restrain  nuisance  (Me.) 2556 

Decree  for   removal  of  nuisance  by  mandatory  injunction 

( Me. ) 2556 

Decree  to  restrain  enforcement  of  judgment  (Me.) 2557 

Decree  for  partition  by  judicial  sale  (Me.) 2557 

Decree  for  dissolution  of  partnership,  account,  receiver  and 

injunction    (  Me.)    2557 

Decree  on  bill  to  remove  and  prevent  cloud  on  title  (Me.)  .  .2558 

Decree  on  bill  for  construction  of  will  (Me.) 2558 

Decree  on  bill  for  construction  of  will  and  for  permission  to 

change  investments   (^le.) 2559 

Decree  for  dissolution  of  corporation  (Me.) 2559 

Decree  on  bill  by  insurance  commissioner  to  dissolve  insur- 
ance company  (]Me.)    2560 

Decree  on  bill  by  bank  examiner  to  dissolve  savings  bank 

(Me.)    ^ 2560 

Decree  approving  acts  and  accoimt  of  receiver  and  ordering 

final  dividend  and  final  account  (Me.) 2561 

Decree  to  enforce  stockholiler  "s  liability  (Me.) 2562 

Decree  to  enforce  lien  on  buildings  and  lot  (Me.) 2562 

Preliminary  decree  on  bill  of  interpleader  ordering  defend- 
ants to  interplead  (Me.)   2563 

Final  decree  on  bill  of  interpleader  after  defendants  have 
been  ordered  to  interplead,  where  plaintiff  bank  has  re- 
tained fund  by  agreement  and  answers  of  defendants 
have   been   taken   as   their   pleadings   against   each   other 

(Me.) '^ ^ 2563 

Decree  on  supplemental  bill  (Me.)   2564 

Decree  on  bill  of  revivor   (Me.)    2564 

Decree  on  cross  bill  seeking  affirmative  relief   (Me.) 2564 

Decree  on  bill  to  review  (Me.)   2564 

Decree  on  bill  to  impeach  decree  for  fraud  (Me.) 2564 

Final  decree  for  redemption  of  mortgaged  property  (Md.)  .  .2565 

Interlocutory  decree  referrina;  case  to  auditor  (Md.) 2565 

Decree  of  foreclosure  on  petition   (Md.) 2565 

Deficiency  decree  on  foreclosure   (Md.)    2566 

Decree  for  foreclosure  on  mortgaged  premises  (Md.) 2567 

Decree  of  interpleader  (Md.) 2568 

Decree  of  redemption   CMass.) 2569 

Decree  of  foreclosure  (Mass.)   2570 

Decree  on  bill  to  set  aside  convevance  in  fraud  of  creditors 

(Mass.)    ! 2570 

Decree  of  dissolution  of  corporation  (Mass.") 2570 

Decree    on    bill   for   specific   performance   of    agreement   to 

convey  (Mass.)    2571 

Decree  on  bill  to  have  mortgage  declared  paid  and  cancelled 

on  the  record  (Mass.)   2571 

Decree  on  creditors'  bill  to  reach  and  applv  property  of  a 

debtor  (Mass.)    ." ". 2571 

Decree  on  bill  to  set  up  lost  deed  (Mass.) 2572 

Decree  on  bill  of  interpleader  (Mass.") 2572 


CONTENTS  OF  VOLUME  III  xcix 

FORM  PAGE 

622.  (10)   Decree  of  reference  on  bill  to  redeem  against  mortgagee  in 

possession  (Mass.)    2573 

623.  (11)   Decree  appointing  receiver  of  a  copartnership  (Mass.) 2573 

624.  (12)   Decree  on  receivers'  rejiort  (Mass.) 2574 

625.  (13)   Decree  on  bill  for  accounting  between  partners  (Mass.) .  . .  .2574 

626.  (1)  Decree  of  redemption   (Mich.) 2575 

627.  (2)   Decree  of  foreclosure  (Mich.)   2576 

628.  (1)   Decree  of  redemption  or  discharge  from  mortgage  (N.  H.) .  .2577 

629.  (2)   Decree  of  foreclosure  of  mortgage   (X.  H.) 2577 

630.  (3)   Decree  allowing  receiver  's  account  (N.  H.) 2577 

631.  (4)   Decree  for  abatement  of  taxes  (N.  H.) 2578 

632.  (5)   Order   of  notice   and   decree  for  dissolution   of   corporation 

(N.  H.)    2578 

633.  (1)   Decree  of  specific  performance  (N.  J.) 2578 

634.  (2)   Decree  of  interpleader   (N.  J.) 2579 

635.  (3)   Decree  on  bill  tor  appointment  of  trustee  (N.  J.) 2580 

636.  (1)    General  form  of  order  or  decree  by  consent  (Pa.) 2581 

637.  (2)   Decree  on  petition  for  redemption  from  mortgage  (Pa.).  ...2581 

638.  (3)   Decree  of  specific  performance  (Pa.) 2581 

639.  (4)   Decree  against  plaintiff  without  hearing  defendant  (Pa.) .  .  .2582 

640.  (5)   Decree  for   dissolution   of   partnership   and   appointment  of 

receiver   (Pa.)    2582 

641.  (6)   Decree  on  petition  for  dissolution  of  corporation  (Pa.) 2582 

642.  (7)   Decree  in  partition  (Pa.)  2583 

643.  (1)   Decree  of  redemption  (R.  I.) 2584 

644.  (2)   Decree  of  foreclosure  (R.  I.) 2584 

645.  (3)   Final  decree  on  bill  to  cancel  void  deed  (R.  I.) 2585 

646.  (1)   Decree  for  specific  performance    (Tenn.) 2586 

647.  (2)   Decree  for  partition   ( Tenn.) 2586 

648.  (3)   Decree  for  a  general  account  between  parties  (Tenn.) 2587 

649.  (1)   General  form  of  decree  under  rule  32  (A^t.) 2587 

650.  (2)   Decree  of  foreclosure   (Vt.) 2588 

651.  (3)   Decree  dissolving  corporation   (Vt.) 2589 

652.  (1)   Decree  for  specific  performance  (W.  Va.) 2589 

653.  (2)   Decree  for  cancellation  of  void  deed   (W.  Ya.) 2590 

654.  (3)  Decree  setting  aside  fraudulent  conveyance  (W.  Ya.) 2590 

655.  (4)   Decree  subjecting  land  to  judgment  liens  (W.  Ya.) 2590 

656.  (5)   Decree  removing  trustee  ( W.  Va.) 2591 

657.  (6)   Decree  enforcing  trust  (W.  Va.) 2591 

658.  (7)   Decree  setting  up  lost  will  (W.  Va.) 2592 

659.  (8)   Decree  reforming  deed  (W.  Va.) 2592 

660.  (9)   Decree  restraining  nuisance  (W.  Ya.) 2593 

661.  (10)   Decree  restraining  enforcement  of  judgment  (W.  A''a.)  .  ..  .2593 

662.  (11)   Decree  for  partition  (W.  Va.) 2593 

663.  (12)   Decree  for  dissolution  of  partnership  (W.  Ya. ) 2593 

664.  (13)   Decree  removing  cloud  from  title  (W.  Va.) 2594 

665.  (14)  Decree  construing  will  (W.  Va.) 2594 

666.  (15)   Decree  for  contribution    (W.  Va.) 2595 

667.  (16)   Decree  dissolving  corporation  (W.  Va.) 2595 

668.  (17)   Decree  on  cross  bill  (W.  Y^a.) 2595 

669.  (18)   Decree  on  answer  seeking  affirmative  relief  ( W.  Ya.) 2595 

670.  (19)   Decree  on  bill  of  review  (W.  Va.) 2596 

671.  (21)   Decree  on  bill  to  impeach  decree  for  fraud  (W.  A'a.) 2596 

672.  (22)   Decree   suspending   decree   to   allow   time   for   appeal    (W. 

Va.)     2597 

CHAPTER    LXXVI 

PROCEEDINGS  IXTERLOCUTORY— MOTIONS  AND  PETITIONS 

A.     MOTIONS   TO  DISMISS   THE   BILL 

673.  Motion  for  dismissal  without  prejudice  (Ala.) 2598 

674.  (1)   Motion  for  dismissal  when  defendant  has  received  satisfac- 

tion (Fla.)   2598 


c  FORMS 

rORM  PAGE 

675.  (2)   Motion  for  dismissal  without  prejudice  (Fla.) 2599 

676.  Motion  by  plaintiff  to  dismiss  liis  bill  (111.) 2599 

677.  (1)    Motion  by  plaintiff  to  dismiss  his  bill  (Me.) 2599 

678.  (2)   Motion  by  plaintiff,  formerly  a  minor,  to  dismiss  his  bill  on 

coming  of  age   ( Me. )    2600 

679.  (3)  Motion   to   dismiss   bOl   for   want   of  jurisdiction   over   the 

person   (Me.) 2600 

680.  (4)   Motion  to  dismiss  for  want  of  prosecution  (Me.)  . . .  ." 2600 

681.  (5)   Motion  to  dismiss  bill  on  abatement  of  suit  by  death  (Me.)  .2600 

682.  (6)   Motion  to  dismiss  bill  defective  by  bankruptcy  of  sole  plain- 

tiff (Me.)   2601 

683.  (7)   Motion  to  dismiss  bill  on  submission  to  plaintiff's  demand.  .2601 

684.  Motion  bv   defendant,   after  special  appearance,  to   dismiss  the 

bill  (Md.)   2601 

685.  Motion  for  a  decree  of  dismissal  (Mass.) 2602 

686.  Motion  by  defendant  (E.  I.) 2603 

687.  Motion  by  plaintiff  (W.  Va.) 2603 

B.     MOTIONS  TO  AMEND 

688.  Motion  at  chambers— Eule  6  (Del.) 2603 

689.  (1)  Motion  to  amend   (111.) 2604 

690.  (2)  Motion  for  leave  to  file  amended  biU  (lU.) 2604 

691.  (1)  Motion  to  amend   (Me.) 2604 

692.  (2)  Motion  to  amend  bill  bv  adding  new  allegations  (Me.) 2604 

693.  (3)  Motion  for  leave  to  file* new  amended  bill  (Me.) 2605 

694.  (4)  Motion   to  amend  by   changing  action  from  law  to  equity 

(Me.) '.  2605 

695.  (5)  Motion    to    amend   by    changing   suit   from    equity   to   law 

(Me.)    2605 

696.  (6)   Motion  for  leave  to  amend  answer  by  inserting  new  matter 

(Me.)    2605 

697.  (7)   Motion  to  withdraw  replication  and  amend  bill  (Me.) 2606 

698.  Petition  for  leave  to  file  amended  bill  (Md.) 2606 

699.  Motion  to  amend  bill  of  complaint  (Mass.) 2606 

700.  Motion  to  amend  bill  or  answer  (N.  H.) 2607 

701.  (1)   Motion  to  amend   (Pa.) 2607 

702.  (2)   Order  thereon  (Pa.)    2607 

703.  Motion  to  amend  (E.  I.) 2607 

704.  Motion  to  amenrl  answer  (Vt.) 2608 

705.  Motion  to  amend  (W.  Ya.) 2608" 

C.     MOTIONS   FOE   CHANCEEY    COMMISSIONS    TO    TAKE 
TESTIMONY 

706.  Motion  for  chancery  commission  (Del.) 2608 

707.  Motion  for  chancery  commission   (Md.l 2609 

708.  Motion  for  chancery  commission   (E.  I.) 2610 

D.     MOTIONS  TO  TAKE  BILLS  PEO  CONFESSO 

709.  Praecipe  for  decree  pro  confesso  (Fla.) 2610 

710.  Motion  for  decree  pro  confesso  (Me.) • .  .2611 

711.  Petition  and  decree  pro  confesso  (Md.) 2611 

712.  Motion  for  decree  pro  confesso  (Mass.) 2611 

713.  Affidavit  and  motion  to  take  bill  pro  confesso  (N.  H.) 2611 

714.  Motion  for  decree  pro  confesso  (B.  I.) 2612 

E.     MOTIONS  TO  SET  FOE  HEAEING 

715.  Motion  to  set  for  hearing  (Del.) 2612 

716.  Motion  to  set  for  hearing  (HI.) 2612 

717.  Motion  to  set  for  hearing  (Me.) 2613 


CONTENTS  OF  VOLUME  III  ci 

FORM  PAGE 

718.  Motion  to  set  for  hearing  (Md.) 2613 

719.  Motion  to  set  for  hearing   (Mass.) 2613 

Motion  to  set  for  hearing  (Pa.) 2613 

720.  Motion  to  ?et  lor  hearing  (R.  I.) 2613 

721.  Motion  to  set  for  hearing  ( \V.  Va. ) 2614 

F.     MOTIONS  FOE   OR  DEES  DIEECTING  ISSUES  TO  THE  JURY 

722.  Motion  for  order  directing  issues  to  the  jury  (111.)     2614 

723.  Motion  for  order  directing  issues  to  the  jury  (Me.)    2614 

724.  Motion  for  order  directing  issues  to  the  jury  (Md.)    2G15 

725.  Motion  for  order  directing  issues  to  the  jury  (Mass.)    2615 

Motion  for  order  directing  issues  to  the  jury  (Pa.)    2616 

726.  Motion  for  order  directing  issues  to  the  jury  (R.  I.)    2616 

727.  Motion  for  order  directing  issues  to  the  jury  (Vt.)     2616 

728.  Motion  for  order  directing  issues  to  the  jury  (W,  Va.)   2616 

.       G.     MOTIONS  TO  DISSOLVE  INJUNCTIONS 

729.  Motion  to  dissolve  injunction   (111.)    2617 

730.  Motion  to  dissolve  injunction   (Me.)    2617 

731.  Motion  to  dissolve  injunction    (Md.)    2617 

732.  Motion  to  dissolve  injunction   (Mass.)    2617 

733.  Motion  to  dissolve  injunction    (Mich.)    2617 

734.  Motion  to  dissolve  injunction    (N.  H.)    2618 

735.  Motion  to  dissolve  injunction    (R.  I.)    2618 

736.  Motion  to  dissolve  in|unctiou    (Vt.)    2618 

737.  Motion  to  dissolve  injunction    (W.  Va.)   2619 

H.     PETITIONS  FOR  THE  APPOINTMENT  OF  EECEIVEES  IN 
PENDING    CAUSES 

738.  Petition  for  appointment  of  receiver  of  rents  of  leased  premises 

(111.)    2619 

739.  Petition  for  appointment  of  receiver  of  partnership  assets  (Me.)  .2620 

740.  Petition  for  appointment  of  receiver  of  rents  and  profits,  under 

Chap.  332,  Gen.  Laws,  1909   (E.  I.) 2620 

741.  Petition  for  appointment  of  receiver  of  corporation  conducting 

lumbering  operations  (W.  Va.)    2621 

I.     MOTIONS    ANT)    PETITIONS    OF    INTERVENTION 

742.  Petition   to   intervene   as   co-defendant   in   suit   for   specific   per- 

formance (Del.)    2623 

743.  Petition   to   intervene   as  co-plaintiff   in  suit   to   establish   stock- 

holders' liability   (111.) 2624 

744.  (1)   Petition  to  intervene  as  co-plaintiff   (Me.) 2625 

745.  (2)   Petition   by   executor   or   administrator    to   be   admitted    to 

prosecute  or  defend   (Me.) 2626 

746.  Petition  to  intervene  as  co-plaintiff   (Md.) 2626 

747.  Petition  to  intervene  as  co-defendant  in  suit  to  establish  a  me- 

chanics' lien    (Mass.)    2626 

748.  Petition  to  intervene  in  proceedings  on  a  will  (N.  H.) 2627 

749.  Petition  to  intervene  as  co-defendant  in  foreclosure  suit  (N.  J.).  2629 

750.  Petition  by  receiver  of  partnership  to  intervene  in  suit  against 

the  partners   (Pa.)    2630 

751.  (1)   Petition  to  intervene  in  pending  suit  (R.  I.) 2630 

752.  (2)   Petition  to  intervene  in  proceedings  for  appointment  of  re- 

ceiver  (R.  I.)    2631 

753.  Petition  to  intervene  as  co-defendant  in  creditors'  suit  (W.  Va  )  .2631 


eii  FORMS 

J.     >nSCELLAXEOrs    MOTIONS   AND    PETITIONS 

W(MSl  PAGE 

754.  (1)   Petitioii  to  fix  the  bond  necessary  for  the  execution  of  a  final 

decree  upon  a  bill  taken  pro  confesso,  when  execution  is 
had  before  the  expiration  of  twelve  months  (Ala.) 2632 

755.  (2)  Form  for  fietition  to  the  court  to  set  aside  decree  pro  con- 

fesso and  allow  non-resident  to  defend  the  suit  (Ala.)  .  . .  .2632 

756.  (1)   Petition  on  lehalf  of  an  infant  dependant  for  appointmejit 

of  the  petitioner  as  guardian  ad  litem  (DeL) 2633 

757.  (2)   Another  form  for  the  same  (DeL) 2634 

758.  (3)   Plaintiff  "s  petition  for  app>ointment  of  guardian  ad  litem  of 

infant  defendant  (Del.)    2634 

759.  (4)   Petition  for  removal  of  guardian  ad  litem  on  minor's  com- 

ing of  age   (DeL) 2634 

760.  Petition  to  remove  disability  of  minority  (Fla.) 2635 

761.  (1)   Petition  for  temporary  injunction  pending  the  cause,  based 

upon  facts  outside  the  bill  <  Me.) 2636 

762.  (2)   Motion  to  appoint  guardian  ad  litem  over  infant  defendant 

(Me.)    2636 

763.  (3)  Petition  for  order  of  foreclosure  sale  by  master  (Me.)  '. . . .  .2637 

764.  (4)  Motion  for  leave  to  file  replication  Huii<r  pro  tunc  (Me.) . . .  .2637 

765.  (5)   Petition  for  writ  of  rie  ejreat  (Me.) 2637 

766.  (5a)  Petition  for  writ  of  ajsistance  (Me.) 263S 

767.  (6)  Petition  for  writ  of  attachment  to  issue  for  disobeying  de- 

cree (Me.)   .' 2638 

768.  (7)   Motion  bv  defendant  for  leave  to  withdraw  a  demurrer  or 

plea    (Me.) 263S 

769.  (8)  Motion   by  defendant  to  compel  plaintiff  to  elect  between 

law  and'  equity  (Me.) 263S 

770.  (9)  Motion  by  defendant  to  ot»en  interlocutory  decree  that  bifl 

be  taken  pro  confesso  (Me.) 2639 

771.  (1)  Motion  for  rule  further  proceedings  (Md.) 2639 

772.  (2)  Motion  for  security  for  costs  (Md.) 2639 

773.  (1)  Motion  for  injunction  (X.  H.)    2640 

774.  (2)  Petition    for   an   attachment   for   disobeving   an   injunction 

(X.  H.')    * 2640 

775.  Motion  to  compel  complainant  to  elect  CR.  I.) 2640 

776.  (1")   Motion  by  defendant  for  leave  to  file  cro?s-biQ  (Tt.) 2641 

777.  (2)  Motion  bv  orator  to  recommit  report  (^t.) 2641 

778.  (3)   Petition  for  contempt  ( Vt) 2641 

779.  (a)  Motion  for  leave  to  withdraw  a  plea  (^.  Ta.) 2643 

750.  (b"^  Motion  for  leave  to  amend  answer  CW.  Ta.> 2643 

751.  (c)  Motion  to  appoint  guardian  ad  litem  for  infant  defendant 

( W.  Ta.)    2643 

782.  (d)  Petition  for  temporary  injunction   (W.  Ya.) 2644 

CHAPTEE  LXXYII 
PETTTIOXS  BY  BECTIYEBS 

755.  Petition  by  receiver  for  leave  to  sell  i.DeL'^ 2645 

784.  Beport  of  receiver  and  petition  for  confirmation  and  discharge 

^Fla.> -W6 

785.  (1)  Petition  by  receiver  for  leave  to  sell  t  IlL^ 2647 

756.  (2"^   Petition  by  receiver  for  confirmation  of  sale  /111.") 264 S 

757.  ('3>   Petition  by  receiver  for  leave  to  purchase  <  Ill.^ 2649 

758.  (1)   Petition  by  re»'eiver  for  permission  to  sell  real  estate  (Me.). 2650 

789.  (21  Petition  by  receiver  for  confirmation  of  sale  (Me.) 2650 

790.  (3>  Petition  by  receiver  for  leave  to  sue  f'Me.> 2651 

791.  (4)  Petition  bv  receiver  for  discharge  (Me-"> 2651 

792.  (1)  Petition    bv    receiver    for    leave   to    sell    personal    property 

(Md.>    .: 2651 


CONTENTS  OF  VOLl'ME  III  ciii 

FORM  PAGE 

793.  (2)  Petition  for  confirmation  of  sale  (Md.) 2652 

794.  (3)  Petition  for  confirniatiou  of  purchase   (Md.) 2652 

795.  (1)  Petition  by  receiver  lor  sale  of  assets  (Mass.) 2653 

796.  (2)  Eeport  of  receiver  on  sale  of  partnership  astets  and  petition 

for  confirmation    (Mass.)    2653 

797.  (1)    Petition  by  receiver  for  leave  to  sell  (N.  H.) 2654 

798.  (2)   Receiver  's  petition  to  borrow  money  (N.  H.) 2654 

799.  (3)   Receiver's  petition  for  confirmation  of  sale  (N.  H.) 2655 

800.  Petition  for  leave  to  sell    (N.  J.) 2656 

801.  Receiver's  petition  for  disi-olution  of  corporation  (N.  J.) 2656 

802.  (1)   Petition  for  leave  to  sell  (Pa.) 2657 

803.  (2)   Petition    for    confirmation    of    sale    of    personal    property 

(Pa.)     2658 

804.  (3)    Petition  for  confirmation  of  sale  of  corporate  assets  (Pa.).. 2658 

805.  (1)   Petition  by  receiver  for  leave  to  sell  (R.  I.) 2659 

806.  (2)   Petition  for  instructions  by  receiver    (R.  I.) 2659 

807.  (1)   Petition  for  leave  to  sell  (Vt.) 2660 

808.  (2)   Motion  for  appointment  of  master  to  pass  on  receiver's  ac- 

count (Vt.)    2660 

809.  Petition  by  receiver  for  permission  to  sell  real  estate  (W.  Va.) .  .2661 

CHAPTER  LXXVIII 

NOTICES  OF  MOTIONS,  PETITIONS,  ETC. 

810.  Notice  of  motion    (Ala.)    2662 

811.  (1)   Notice  of  hearinj;-  (Fla.) 2662 

812.  (2)   Notice  of  motion   (Fla.)    2662 

813.  (1)   Notice  of  motion  (111.)   2663 

814.  (2)    Notice  of  motion  for  chancery  commission  to  take  testimony 

(111.)    2664 

815.  (1)   Notice  of  oral  motion  (Me.) 2664 

816.  (2)    Notice  of  motion  in  writing  or  petition   (Me.) 2665 

817.  Notice  for  taking  dejiositions  of  non-resident  witnesses  before  a 

commissioner,  notary  I'ublie  or  justice  of  the  peace,  under  Sec- 
tion 16,  of  Article  35,  of  the  Maryland  Code  of  Public  General 
Laws  (Md.) ." 2665 

818.  (1 )   Notice  of  motion  (Mass.) 2665 

819.  (2)    Affidavit  of  notice  of  motion  (Mass.) 2666 

820.  Notice  of  motion  or  petition   (Mich.) 2666 

821.  Notice  of  motion  (N.  J.)    2666 

822.  Notice  of  petition  (Pa.)   2667 

823.  Notice  of  motion   (Vt.)    2667 

824.  Notice  of  motion  in  writing  or  petition  (W,  Va,) 2667 

CHAPTER    LXXIX 
INTERLOCUTORY    ORDERS    OR    DECREES 
A.     ORDERS    OF    NOTICE 

825.  (1)   Order  of  publication   (Del.)    2668 

826.  (2)   Order  to  show  cause  on  a  bill   (Del.) 2668 

827.  (3)   Order  to  show  cause  on  petition  (Del.) 2669 

830.  (1)   Order  of  publication  on  affidavit  appended  to  bill  (Fla.)  .  .  .  .2669 

831.  (2)    Order  of  publication  on  motion   (Fla.) 2670 

832.  (3)   Order  of  publication  against  unknown  defendant  (Fla.).  .  .  .2670 

833.  Special  order  of  notice  on  bill   (Me.) 2671 

834.  Order  to  show  cause  (Mass.)   2671 

83.5.  Special  order  of  notice  (N.  H.) 2672 

836.  Order  to  show  cause  on  receiver's  report  of  sale  (N.  J.) 2672 

837.  (1)   Special  order  of  notice  on  bill  (R.  I.) 2673 

838.  (2)   Notice  of  petition  (R.  I.)    2673 


eiv  FORMS 

B.     COMMISSIONS  TO  TAKE  TESTIMONY  AND  OEDEBS 
THEBErOB 

FOKU  FAGE 

S39.  (1)  Order  for  ehanceiy  commission  to  take  testimony  (DeL) -67-1: 

&tO.  (2)  Commi^on  to  examine  mtne^ses  on  interrogatories  (l^eL) .  .2674 

841.  (3)  Commi^on    to    examine    witnesses    orally,    under    role    40 

(DeL) 2675 

842.  Commission  to  take  depositions  (Fla.) 26f  5 

8^.  Cranmission  to  take  depositions  (IIL) 2676 

84^  Commission  to  take  depositions  (Me.) 2677 

843.  (1)  Order  of  court  to  take  testimony  before  examiner  (Md.) 2677 

846.  (2)  Commission  to  examine  witnesses  residing  beyond  the  juris- 

diction of  the  court  ^i^Md.) 2677 

847.  Ctwunission  to  take  depositions  (^Mieh.) 267S 

Testimony  in  cases  in  equity  (Pa.) 2679 

848.  Bnle  for  a  commission  (Pa.) 2679 

Sr&.  Order  for  chancery  commission  to  take  testimony  (B.  I.) 26S0 

830.  Oommission  to  take  testimony  outside  of  Vermont  (Vt.) 2650 

C     IXJUXCTIOXS  AKD  BESTBAIXING  OBDEBS 

SoL   (1)  Bestraining  order  on  bfll  for  specific  performance  (DeL) 2681 

832.  (2)  Order  lor  preliminary  injunction  on  bill  to  restrain  private 

nuisance  (DeL) 26S1 

853.  (3)  Bestraining  order,  and  order  of  notice  for  temporary  injunc- 

tion, on  creditor  s  bill  (DeL  ) 26S2 

854.  (1)  Bestraining  order  (DL)   26S2 

835.  (2)  Order  for  tonporary  injunction  (IIL) 26>3 

856.  (1)  Order  for  tonporaiy  injunction  (Me.) 26S3 

837.  (2)  Bestraining  order  and  order  of  notice  for  injunction  (Me.)  .  .26S3 

858.  (1)   Preliminary  restraining  order  n_Md.) 26S4 

839.  (2)  Order  for  injunction  (Md.) 26S4 

860.  Order  of  notice  for  injunction  (Mass.) 26S4 

861.  (1)  Order  for  temporary  injunction  (Mich.) 26S5 

862.  (2)  Bestraining  order  (Mich.)   26S5 

863.  Order  for  temporary  injunction  (X.  H.) 26S6 

$64.  (1)  Bestraining  order  and  order  of  notice  for  injunction  (X.  J.)  .26S6 

865.  (2)  Order  for  temporary  injunction  (X.  J.) 26S7 

866.  (1)  Order  for  prdiminary  injunction  (Pa.) 26S8 

867.  (2)  Bestraining  order  (P'a.)  26S8 

868.  (1 )  Order  for  temporary  injunction  in  nuisance  ease  (B.  I.) 26S3 

869.  (2)  Bestraining  order  (B.  I.) 26S9 

870.  Order  for  temporary  injunction  (Vt) 26S9 

871.  Order  for  tmnporary  injunction  ( W.  Va.) 26S9 

D.  OBDEBS  AFTHOBIZIXG  SAI£S  BY  BECETVEBS  ANT)  MASTEBS 

*'72.  Order  authorizing  sale  by  reeeirer  (D^) 2690 

S74.  Order  authorizing  sale  by  receiver  (IIL) 2692 

»75.  (1)  Order  authorizing  ^e  of  propertr  by  receiver  (Me.) 269.3 

876.  (2)  Briefer  form  for  the  same  (Me.) ." . .  * 2693 

Sf  I.  (1)  Order  directing  a  sale  of  perishable  property  in  the  hands  of 

a  receiver  (Md.)  ." 2693 

878.  (2)  Order  for  private  sale  of  personal  property  (Md.) 2694 

$79.  Order  authorizing  sale  by  receiver  < Mass.) 2694 

550.  Order  anthoriznig  sale  by  receiver  { Mich.) 2694 

551.  Order  authorizing  sale  by  receiver  (X.  J.) 2695 

852.  Order  authorizing  sale  by  receiver  ( Pa.) 2695 

853.  Order  authorizing  sale  by  receiver  (B.  I.) 2696 

E.  OBDEBS  OOXnBMES'G  SALES  AXT)  PFBCHASES  AXD  OEDEES 

DISCHABGIXG  BECEEYEES  AXT)  TBUSTEES 

884.  Order  confirming  sale  (DeL)   2696 

885,  Order  confirming  sale  (Fla.) 2697 


CONTENTS  OF  VOLUME  111  ev 

FOKM  PAGE 

886.  Order  discharging  receiver  and  approving  account  (111.) 2699 

887.  Order  confirming  sale  by  receiver   (Ale.)    2699 

888.  (1)   Order  of  ratification  of  auditor's  account,  releasing  old  and 

appointing  new  trustee  (Md.)    2699 

889.  (2)   Order  confirming  purchase  by  receiver  (Md.) 2700 

890.  (3)   Order  nisi  confirming  sale  by  trustee  (M.d.) 2700 

891.  (4)   Final  order  confirming  sale  by  trustee  (Md.) 2701 

892.  (1)   Order  confirming  account  and  discharging  receiver  (Pa.) . .  .  .2701 

893.  (2)   Order  confirming  sale  by  receiver  (Pa.) 2701 

894.  Order  allowing  account  and  discharging  receiver  (E.  I.) 2701 

F.  ORDEES  OF  EEFEEEXCE  TO  MASTEES 

895.  Order  of  reference  on  report  and  petition  of  administrator  for  set- 

tlement of  his  account  (Ala.) 2702 

896.  Order  of  reference  on  bill  to  dissolve  corporation  (Del.) 2704 

897.  Order  of  reference  on  foreclosuie  bill  (Fla.) 2704 

898.  Order  of  reference  (111.)   ". 2705 

899.  Order  of  reference  on  bill  for  dissolution  of  partnership  (Me.) .  .  .2705 

900.  Order  of  reference  (Md.)   2706 

901.  Order  of  reference  (Mass.) 2706 

902.  Order  of  reference  of  bill  for  divorce  (Mich.) 2707 

903.  Order  of  reference  (N.  H.)    2707 

904.  Order  of  reference  (N.  J.) 2708 

905.  Decree  of  partition  and  aj^pointment  of  master  (Pa.) 2708 

906.  Order  of  reference  on  foreclosure  bill  (E.  I.) 2709 

907.  Order  of  reference  on  receiver  's  report  (Vt.) 2709 

908.  Order  referring  cause  to  commissioner  (W.  Va.) 2710 

G.  OEDEES  DIEECTING  ISSUES  TO  JUEY 

909.  Order  directing  issues  to  jury   (Del.)    2710 

911.  Order  directing  issues  to  jury   (ill.)   2711 

912.  Order  directing  issues  to  jury   (Me.)    2711 

913.  Order  directing  issues  to  jury   (Md.)    2712 

914.  Order  directing  issues  to  jury   (Mass.)    2712 

915.  Order  directing  issues  to  jury   (Mich.)    2713 

916.  Order  directing  issues  to  jury   (Pa.)    2713 

Order  directing  issues  to  jury   (R.  I.)    2713 

917.  Order  directing  issues  to  jury   (W.  Va.)    2713 

H.     DECREES  PRO  CONFESSO  UPON  PETITIONS  THEREFOR 

918.  (1)   Decree  pro  confesso  upon  service  of  process  (Ala.) 2714 

919.  (2)   Decree    pro    confesso    upon    publication    without    personal 

service   (Ala.)    2714 

920.  (3)   Final    decree    on    a    decree    pro    confesso    without    personal 

service   (Ala.)    2715 

921.  (1)   Decree  pro  confesso  (Del.) 2715 

922.  (2)   Decree  pro  confesso  and  setting  for  hearing  on  foreclosure 

bill   (Del.) 2716 

923.  (1)   Praecipe  for  decree  pro  confesso  (Fla.) 2716 

924.  (2)   Decree  pro  confesso — brief  form  (Fla.) 2717 

925.  (3)   Decree  pro  confesso — full  form  (Fla.) 2717 

926.  (4)   Clerk's  certificate  of  entry  of  decree  pro  confesso  (Fla.) .  .  .  .2718 

927.  Decree  pro  confesso  (111.)   2718 

928.  (1)   Decree  pro  confesso  after  order  of  publication  (Md.) 2719 

929.  (2)   Decree  pro  confesso  for  failure  to  plead  (Md.) 2719 

930.  Decree  pro  confesso  for  failure  to  plead  (Mass.) 2719 

931.  Final  decree  2wo  confesso  (N.  H.) 2720 

932.  (1)   Decree  pro  confesso  after  order  of  publication  (N.  J.) 2720 

933.  (2)   Decree  pro  confesso  upon  service  of  process  (N.  J.) 2720 

934.  Decree  pro  confesso  upon  service  of  process  (Pa.) 2721 


evi  FORMS 

FORM  PAGE 

935.  Decree  pro  confesso  (K.  I.)   2721 

93G.  Decree  pru  conjtsbo  (Teuu.)    2722 

I.     OEDEES  APPOINTING  KECEIVEES 

937.  (1)   Order  appoiutiug  receiver  of  insolvent  corporation  (Del.)  ...  .2722 

938.  (2)    Order  appoiutiug  receiver  of  insolvent  bank  (Del.) 2723 

939.  (1)   Order  apiiointing  receiver  under  public  laws  of  1905,  Ch.  85 

(Me.;  2724 

940.  (2)   Order  appointing  receiver,  giving  instructions  and  authoriz- 

ing issuance  of  certificate  (Me.) 2725 

941.  Order  appointing  receiver  of  real  estate  (N.  H.) 272ti 

942.  Order  appointing  temporary  receiver  of  a  corporation  (Vt.) 2727 

943.  Order  appointing  receiver  of  corporation  (W.  Va.) 2727 

J.     OEDEES  APPOINTING  GUAEDIANS  AD  LITEM 

944.  (1)   Order  appointing  guardian  ad  litem  (Ala.) 2728 

945.  (2)   Order  appoiutiug  aduiiuistrator  ad  litem  (Ala.) 2729 

946.  Order  appointing  guardian  ad  litem   (Del.) 2729 

947.  Order  appoiutiug  guardian  lor  absent  unknown  defendant  (Fla.)  .2730 

K.     MISCELLANEOUS  OEDEES 

948.  (1)   Order  fixing  bond  necessary  for  the  execution  of  a  final  decree 

upon  a  bill  taken  pro  confesso,  when  execution  is  had  before  the 
expiration  of  twelve  mouths  (Ala.) 2731 

949.  (2)   Order  overruling  exceptions  and  confirming  report  of  register 

(Ala.)    2731 

950.  (1)   Order  appointing  a  trustee  under  a  will,  deed,  etc.  (Del.) . .  .  .2732 

951.  (2)   Order  removiug  guardian  ad  litem  (Del.) 2733 

952.  Order  for  writ  ne  exeat  (Me.) 2733 

953.  Brief  form  of  order  of  court  granting  writ  ne  exeat  (Me.) 2734 

954.  Order  for  security  for  costs  (Md.) 2734 

955.  Eule  to  show  cause  why  defendant  should  not  be  punished  for  con- 

tempt (Mass.)   2734 

956.  (1)   Order  setting  for  hearing  (N.  J.) 2734 

957.  (2)   Order  discharging  trustee  (N.  J.) 2735 

958.  (3)   Order  to  amend  (N.  J.) 2735 

959.  Order  dissolving  injunction   (Pa.) 2736 

960.  (1)    Order  overruling  demurrer  to  bill  (Vt.) 2736 

961.  (2)   Order  recommitting  the  master 's  report  ( Vt.) 2736 

962.  (3)   Order  dissolving  injunction   (Vt.) 2737 

CHAPTEE  LXXX 
BONDS 

963.  Bond  necessary  to  execution  of  a  decree  taken  pro  confesso  with- 

out personal  service,  if  the  execution  is  desired  before  the  ex- 
piration of  a  year  (Ala.)    2738 

964.  (1)   Eeceiver's  bond  (Del.)    2739 

965.  (2)   Bond  to  be  given  by  purchaser  at  trustee's  sale  (Del.) 2740 

966.  (3)   Trustee 's  bond  (Del.) 2740 

967.  (4)   Appeal  bond  (Del.)   2741 

968.  (5)   Injunction  bond,  for  an  injunction  to  stay  an  action  at  law 

for  debt  or  damages  before  judgment  (Del.) 2741 

969.  (6)    Injunction   bond,  for   an  injunction  to   stay  execution  of  a 

judgment  (Del.)   2742 

970.  (7)   Injunction  bond,  for  injunctions  other  than  to  restrain  the 

recovery  or  collection  of  money, — as  in  cases  of  waste,  nui- 
sance, ejectment,  etc.  (Del.)   2743 


CONTENTS  OF  VOLUME  III 


evil 


FORM 

971. 

(1) 

972. 

(2) 

973. 

Api 

974. 

(1) 

975. 

(2) 

976. 

(1) 

977. 

(2) 

978. 

(3) 

979. 

(4) 

980. 

(1) 

981. 

(2) 

982. 

(1) 

983. 

(2) 

984. 

(1) 

985. 

(2) 

986. 

(1) 

987. 

(2) 

988. 

(1) 

989. 

(2) 

990. 

(1) 

991. 

(2) 

992. 

(1) 

993. 

(2) 

994. 

(1) 

995. 

(2) 

996. 

(1) 

997. 

(2) 

Eeeeiver  's  bond  (Fla.)   2743 

Plaintiff 's   bond   to   deiendaut   ou   appointment   of   receiver 

(Fla.)    2744 

Appeal  bond   (Fla)    2745 

Injunotion  bond  (111.)   2746 

Eeeeiver  's  bond  (,  HI. )    2746 

Statutory  bond  for  injunction    (Me.) 2747 

Eeeeiver  's  bond  (Me.) 2748 

Condition  of  ne  exeat  bail  bond  (Me.) 2748 

Condition    of    bail   bond   on   arrest   lor    contempt   of   decree 

(Me.) 2749 

Injunction  bond  (Md.)    2749 

Eeeeiver  's  bond   (Md.)    2750 

Injunction  bond  by  defendant  on  court's  refusing  injunction 

(Mass.)     2750 

Eeeeiver 's  bond  (Mass.)  2751 

Injunction  bond   (N.  H.)    2751 

Permanent  receiver's  bond  (N.  11.) 2752 

Injunction  bond   (N.  J.) 2752 

Eeeeiver 's  bond  (N.  J.)    2753 

Injunction  bond   (Pa.)    2754 

Eeeeiver  's  bond  (Pa.)  2754 

Injunction  bond  (E.  I.)    ' 2755 

Eeeeiver's  bond  (E.  I.) 2756 

Injunction  liond  ( Vt.)   2756 

Eeeeiver  's  bond  ( Vt. )    2757 

Injunction  bond   ( Va.)    2757 

Eeeeiver's  l)ond  (Va.) 2758 

Injunction  bond  ( W.  Va.)    2759 

Eeeeiver 's  bond  ( W.  Va.)    2760 


CHAPTEE  LXXXI 


998. 

999. 
1000. 
1001. 
1002. 
1003. 
1004. 
1005. 
1006. 
1007. 
1008. 
1009. 
1010. 
1011. 
1012. 
1013. 
1014. 
101.5. 
1016. 
1017. 
1018. 


EEPOETS  OF  MASTEES  AND  EECEIVEES 

1)  Master's  report  (111.)   2761 

2)  Eeeeiver's  report   (111.)    2761 

1 )  Master 's  report  ( Me. ) 2762 

2)  Eeeeiver's  report  or  account  (Me.) 2763 

Master 's  report  of  sale   (Md.) 2763 

1)  Eeeeiver's  first  report  (Mass.)    2763 

2)  Eeeeiver's  final  report  (Mass.)   2764 

3)  Master's  report  (Mass.)   2764 

1)  Eeeeiver's  account  (N.  H.) 2765 

2)  Master's  report  (N.  H.) 2765 

1)  Eeeeiver's  report  and  account  (N.  J.) 2765 

2)  Master's  report  (N.  J.) 2766 

3)  Eeeeiver's  report  of  sale  (N.  J.) 2767 

1)  Master's  interlocutory  report  in  partition  proceedings  (Pa.). 2768 

2)  Master's  return  to  order  of  sale  (Pa.) 2769 

3)  Master's  final  report  (Pa.)    2769 

1)  Eeeeiver's  report  (E.  I.)    2770 

2)  Master's  report  (E.  I.)   2771 

Special  master's  report  (Vt.)   2771 

1 )  Commissioner's  renort  fW.  Va.)    2772 

2)  Eeeeiver's  report  (W.  Va.)    2773 


CHAPTER  LXXXII 

EXCEPTIONS  AND  APPEALS 

1019.  Exceptions  to  report  of  reG;ister  (Ala.) 2774 

1020.  (1)   Entry  and  notice  of  entry  of  appeal  (Fla.) 2775 


CVIU 


FORMS 


FOKM  P. 

1021.   {2)   Assignmeut  of  error  (Fla.)    2 

10"_*:i.   { ] )   Exceptions  to  the  master  s  rejjort  (111.) 2 

1023.  (.2)   Apiteal   (111.)   2 

1024.  (1)   Exceptions  to  bill  lor  scandal  (Me.) 2 

1025.  {Z)   Exceptions  to  answer  for  insufficiency  (Me.) 2 

1026.  (3)    Exceptions  to  master  's  report  (Me.) 2 

1027.  (4)   Exceptions  to  interlocutory  order   (Me.) 2 

1028.  (5)   Ai)peal  (xMe.)    2 

1029.  (6)   Keport  of  cause  to  law  court  (Me.) 2 

1030.  (1)   Exceptions  to  defendants'  answer  (Md.) 2 

1031.  (2)   Order  for  an  appeal  (Md.) 2 

1032.  (1)    Exceptions  to  nuister  's  report  (Mas-s.) 2 

1033.  (2)   Appeal  from  tinal  decree  (Mass.) 2 

1034.  Exceptions  to  answer  (N.  H.) 2 

1035.  Xotice  of  appeal  (X.  J.) 2 

1036.  (1)   Exceptions  to  bill  for  scandal  or  impertinence  (Pa.) 2 

1037.  (2)   Exceptions  to  answer  (Pa.)  2 

103S.   (3)   Exceptions  to  findings  (Pa.)   2 

1039.  (4)   Appeal   (Pa.)    2 

1040.  (5)   Certiorari  sur  appeal  (Pa.)    2 

1041.  (1)   Exceptions  to  master  's  report  (R.  I.) 2 

1042.  (2)   Appeal   (R.  I.)    2 

1043.  (1)    Exceptions  to  master's  rejiort  (Vt.) 2 

1044.  (2)   Notice  of  appeal  (Yt.)   2 

1045.  (1)   Writ  of  stipersedcas  (Va.)    2 

1046.  (2)   Writ  for  appeal  without  supersedeas  (Va.) 2 

1047.  (1)   Exceptions  to  bill,  for  scandal  and  impertinence  (W.  Va.)  .  .  .2 

1048.  (2)   Exceptions  to  answer,  for  insufficiency  (W.  Va.) 2 

1049.  (3)   Exceptions  to  commissioner's  report  (W.  Va.) 2 


CHAPTER  LXXXIII 

'\VRITS 

1050.  Writ  of  in.iunction 2787 

1051.  Writ  of  ne  ejcat  (111.)   2787 

1052.  Writ  of  execution  to  perform  decree 2788 

1053.  Writ  of  execution  for  money 2789 

1054.  Writ  of  attachment 2789 

1055.  Writ  of  attachment  for  contempt  in  refusing  to  ai>pear  and  testify 

2790 

1056.  Writ  of  assistance 2790 

1057.  Writ  of  possession  in  foreclosure  of  mortgage  (Vt.) 2790 

1058.  Writ  of  sequestration 2791 

1059.  Writ  of  distrinpas 2792 

FEDERAL  FOR:\rS 

CIL^PTER  LXXXIV 

FEDERAL  FORMS  FOR  BILLS  IX  EQUITY 

FORMAL  PARTS 

1060.  Caption  of  the  bill  2794 

1061.  Address  of  the  bill 2794 

IXTRODFCTIOXS  TO  THE  BILL 

1062.  Individual  plaintiff  against  defendant 2794 

1063.  One  plaintiff  against  two  or  more  defendants 2794 

1064.  Partners   2795 

1065.  Corporations    2795 


CONTENTS  OF  VOLUME  III  eix 

FORM  PAGE 

1066.  Town  of  New  England 2795 

1067.  County    2795 

1068.  The  United  States  against  a  corporation 2795 

1069.  Administrator,  executor  and  trustee 2796 

1070.  Trustees  in  bankruptcy 2796 

PAETIES  UNDER  DISABILITY 

1072.  Infant ' 2796 

1073.  Lunatic   2796 

1074.  Wife  by  next  triend 2797 

1075.  Alien  against  a  citizen 2797 

1076.  Grounds  of  jurisdiction 2797 

PRAYERS 

1077.  Prayer  for  relief 2798 

1078.  Short  form  of  prayer  for  relief 2798 

1079.  Prayer  for  general  relief 2798 

1080.  Prayer  for  process 2798 

1081.  Prayer  for  writ  of  injunction  and  subpoena 2798 

SPECIAL  FORMS  FOR  SIGNATURE 

1082.  Corporation    2799 

1082a.  Municipal  corporation 2799 

1082b.  Administrator,  executor  and  trustee ^ 2799 

1082c.  Trustee  in  bankruptcy * 2799 

1082d.  Guardian  or  next  friend 2799 

1083.  Verification 2800 

1084.  Verification  by  a  corporation   2800 

PRECEDENTS  OF  BILLS  IN  EQUITY 

1086.  Bill  to  foreclose  railroad  mortgage 2800 

1087.  Bill  l)y  f^^econd  mortgagee  under  railway  mortgage  for  accounting  ' 

and  other  relief  .  .  .  T 2807 

1088.  Bill  to  foreclose  a  conditional  contract,  with  prayer  for  injunc- 

tion, receiver  and  writ  of  attachment 2809 

1089.  Bill  for  specific  performance  of  contract  to  convey  stock 2814 

1090.  Bill  to  cancel  deed  on  the  ground  of  fraud 2815 

1091.  Bill    to    restrain    foreclosure    and   set    aside    conveyance    on   the 

ground  of  fraud .  . 2817 

1092.  Bill  to  set  aside  gifts  and  compel  reassignment  of  mortgage  and 

note  on  the  ground  of  fraud 2820 

1093.  Bill  by  trustee  in   bankruptcy  to   recover  preferences  under  the 

bankruptcy  act    2821 

1094.  Bill  by  trustee  in  bankruptcy  to  recover  a  fraudulent  preference 

and  charge  a  fund  with  a  trust 2823 

1095.  Bill  by  trustee  in  bankruptcy  to  set  aside  fraudulent  conveyance.  .2824 

1096.  Bill  by  trustee  in  bankruptcy  to  avoid  a  fraudulent  conveyance 

and  charge  the  property  with  a  trust 2827 

1097.  Bill  by  trustee  in  bankruptcy  to  reach  and  apply  a  mortgage  note. 2830 

1098.  Bill   by  minority  stockholders  against  corporation   and  those   in 

control  to  set  aside  consolidation  made  in  violation  of  statute.  .2832 

1099.  Minority  stockholders'  bill  to  have  transfer  of  stock  rescinded  on 

the  ground  of  f ra\id 2835 

1100.  Bill   by   trustee  under  mortgage  deed  against  a  corporation   to 

restrain  performance  of  ultra  vires  contract 2837 

1101.  Bill  to  enforce  a  trust 2840 

1 1 02.  Bill  for  removal  of  trustee 2842 

1103.  Bill  to  set  up  lost  deed  or  other  instrument 2843 

1104.  Bill  to  reform  mistake  in  a  contract 2845 


ex  FORMS 

FORM  PAGE 

1105.  Creditors"  bill  to  reach  and  applj  property  that  cannot  be  at- 

tacheii   2S46 

1106.  Creditors '  bUl  for  appointment  ot  receiver 2847 

11U7.  Creditors'  -biU   lor  receiver  on  ground  of   tlueatened  waste  of 

assets  by  litigauon 2849 

1108.  Creditors'  bill  lor  appointment  of  receiver  of  railroad  on  ground 

oi  danger  of  waste  by  litigation 2853 

1109.  Bill  to  lescrain  nuisance * 2858 

1110.  BiU  by  Lnited  States  to  enjoin  a  nuisance 2859 

1111.  Bill  tor  partition   2861 

lll:i.  Bill  lor  dissolution  of  partneismp  and  accounting 2862 

1113.  BiU  to  resuam  enforcement  ot  judgment 2863 

1114.  Bill  to  enjoin  interference  with  possession  pending  action  of  eject- 

meiit    2865 

1115.  Bill  lor  the  construction  of  a  will 2867 

1116.  Bill  to  eniorce  a  ben 2868 

1117.  Bill  to  cuarge  stocK  with  a  lien 2870 

Ills.  Bill  lor  an  accounting  on  insurance  policy 2872 

1119.  BUI  to  prevent  uniair  discrimination  by  a  pubUc  service  corpora- 

tion against  a  shipper 2874 

1120.  Bill  lor  mandatory  injunction  to  compel  removal  of  poles 2876 

1121.  BiU  to  enjoin  iniringement  oi  patent  and  lor  an  accotmtiQg  of 

profits   2881 

1122.  Bill  to  enjoin  iniringement  of  patent  and  unfair  competition  and 

lor  accounting  of  pronts 2882 

1123.  BiU  to  compel  assignmeut  of  patents  and  enjoin  transfer  of  same. 2884- 

1124.  BiU  to  enjoin  iniringement  ol  trade  marks 2887 

1125.  BUI  to  enjoin  iniringement  of  trade  mark  and  for  an  accounting 

of  pronts 2891 

1126.  BUI  to  enjoin  uniair  competitiun 2895 

1127.  BUI  to  enjoin  fraudulent  competition 2898 

112&.  BiU  to  enjoin  iniriugemeut  of  copyright  of  map  under  act  of 

March  4,  1909 2901 

1129.  Affidavit  in  copyright  case 2903 

lloO.  BiU  to  enjoin  iufriugement  of  copyright  of  reports  of  decisions.  .2903 

1131.  BiU  to  enjoin  infringement  of  copyright  of  calendar 2909 

1132.  BUI  lor  discovery  in  aid  of  an  action  at  law 2910 

1133.  BiU  of  interpleader 2911 

1134.  Form  for  affidavit  to  be  annexed  to  biU  of  interpleader 2913 

1135.  BiU  lor  appointment  of  temporary  anciUary  receivers 2913 

1136.  BUI  for  appointment  or  ancillary  receiver 2916 

1137.  BUI  for  appointment  of  ancillary  receiver 2917 

1138.  Supplemental  bUf 2919 

1139.  BiU  in  the  nature  of  a  bUl  of  review  to  vacate  entry  of  decree 

pro  confesso 2921 

CHAPTEB  LXXXT 

FEDERAL  FOBMS  FOR  ANSWERS 

1140.  Formal  parts 2924 

1141.  Answer  contenting  to  apftointment  of  receiver 2924 

1142.  Answer  to  biU  to  set  aside  transfers 2925 

1143.  Answer  to  biU  for  mandatory  injunction  to  compel  removal  of 

poles '. 2927 

1144.  Answer  to  biU  to  enjoin  fraudulent  competition 2931 

1145.  Answer  to  bUl  to  enjoin  infringement  of  trade  mark 2933 

1146.  Answer  to  bUl  to  enjoin  infringement  of  patent 2934 

1147.  Answer  to  bUl  to  enjoin  infringement  of  copyright  of  calendar.  .  .2936 
114S.  Answer  setting  up  counter  claim  or  set-off 2937 

1149.  Answer  in  Ueu  of  demurrer 2938 

1150.  Answer  in  lieu  of  plea  of  laches 2939 

1151.  Supplemental  answer  2939 


CONTENTS  OF  VOLUME  III         cxi 

FORM  PAGE 

1152.  Supjileniental  answer   2939 

1153.  Interrogatories  by  plaiutifif   2940 

CHAPTER  LXXXVI 

FEDERAL  FORMS  FOR  MOTIONS 

1154.  Formal  parts 2942 

1155.  Notice  of  motion  and  acknowledgment 2942 

1156.  Motion  to  amend   2942  • 

1156a.  Motion  to  amend  (alternative  form)   2943 

1157.  Motion  for  substituted  service   2943 

1158.  Motion  for  restraining  order 2943 

1159.  Motion  for  restraining  order   2943 

1160.  Motion  for  temporary  injunction  and  order  of  notice 2944 

1161.  Motion  by  plaintiffs  to  discontinue  as  to  certain  party  defendants. 2944 

1162.  Motion  by  plaintiff  lor  furtlier  and  better  statement 2945 

1163.  Motion   by   plaintiff   for   furtlier   and   better   statement — (prece- 

dent)    2945 

1164.  Motion  for  leave  to  file  supplemental  bill 2945 

1165.  Motion  for  a  revivor  and  order  thereon 2946 

1166.  Motion  for  a  revivor  (alternative  form) 2946 

1167.  Motion  to  strike  out  portion  of  answer  for  insufficiency 2947 

1168.  Motion  by  plaintiff'  to  suppress  deposition 2947 

1169.  Motion  by  plaintiff'  for  leave  to  file  interrogatories 2948 

1170.  Motion  for  leave  to  file  interrogatories  for  discovery  of  facts  and 

documents  by  opposite  party 2948 

1171.  Motion   for   leave   to   file   interrogatories   to   be   answered   by  an 

officer  of  a  corporation 2948 

1172.  Objection  to  interrogatories 2949 

1173.  Motion  by  plaintiff  for  jury  issues 2949 

1174.  Motion  for  reference  to  a  special  master  in  a  matter  other  than 

for  an  accounting 2949 

1175.  Motion  for  reference  to  special  nmster  for  an  accounting 2949 

1176.  Motion  to  fix  time  for  payment  of  amount  found  due  by  master.  .  .2950 

1177.  Motion  for  confirmation  of  sale  by  master 2950 

1178.  Notice  of  exanunation  before  examiner 2950 

1179.  Demand  for  admission  of  execution  of  document 2950 

1180.  Motion  by  defendant  for  order  for  security  for  costs 2951 

1181.  Motion  by  defendant  for  security  for  costs  and  order  thereon.  .  .  .2951 

1182.  Motion  by  defendant  to  dismis^s  plaintiff's  bill  for  failure  to  give 

security  for  costs 2952 

1183.  Motion  by  defendant  for  further  and  better  particulars 2952 

1184.  Motion  by  defendants  to  bring  in  additional  parties 2952 

1185.  Motion  to  strike  out  for  impertinence 2953 

1186.  Motion  to  dismiss  in  lieu  of  demurrer  or  plea 2954 

1187.  Motion  to  dismiss  in  lieu  of  demurrer  on  the  ground  of  adequate 

remedy  at  law  and  want  of  equity 2954 

1188.  Motion  in  lieu  of  plea  on  the  ground  of  want  of  interest  in  the 

plaintiff 2954 

1 189.  Motion  in  lieu  of  plea  to  the  jurisdiction 2955 

1190.  Motion  to  dismiss  on  ground  of  suit  pending 2955 

1191.  Motion  by  defendant  for  leave  to  file  interrogatories 2955 

1192.  Motion  to  extend  time  for  answer .2956 

1193.  Motion  by  defendants  to  vacate  restraining  order 2956 

1194.  Motion  to  dissolve  injunction 2957 

1195.  Motion  for  leave  to  tile  supplemental  pleading 2957 

1196.  Motion  by  defendants  for  leave  to  file  supplemental  answer   (an- 

other form)    2957 

1197.  Motion  for  jury  trial 2957 

1198.  Motion  to  transfer  cause  to  law  side  of  the  court 2958 

1199.  Motion  for  writ  of  ne  exeat 2958 

1200.  Affidavit  to  obtain  writ  of  nc  ereaf 2958 


cxii  FORMS 

CHAPTEB  LXXXVn 

FEDERAL  FORilS  FOB  PETITIONS 
FORM  PAGE 

1201.  Formal  parts 2959 

12u:i.  Petition  to  intervene  2959 

1::U3.  Petition  lor  leave  to  intervene 2959 

1203a.  Order  of  court  granting  leave  to  intervene 2960 

1204.  Petition  lor  leave  to  tile  a  supplemental  bill  of  complaint 2960 

1205.  Petition  tor  retiearing 2960 

1206.  Petition  of  receiver  lor  leave  to  sell  assets 2961 

1207.  Petition  of  receiver  for  leave  to  sell  assets  at  private  sale 2962 

1208.  Petition  of  receiver  for  leave  to  borrow  money  upon  receiver  "s 

certificates    2963 

1209.  Proot  of  service  of  notice  upon  petition  of  receiver  for  leave  to 

borrow  money   2965 

1210.  Petition   of   receiver   for  order   limiting   the  time  for  proof  of 

claims    2965 

1211.  Affidavit  of  having  given  notice  under  interlocutory  decree  of  the 

court   2966 

1212.  Petition  of  ancillary  receiver  to  be  allowed  to  pay  insurance 2966 

1213.  Petition  for  confirmation  of  report  of  temporary  receiver  and  for 

special  instructions 2967 

121-1.  Petition  of  receiver  for  discharge 2967 

1215.  Petition  lor  leave  to  file  bill  against  receiver 2967 

1216.  Petition  for  confirmation  of  report  of  special  master  and  for  spe- 

cial instructions 2970 

1217.  Petition  and  affidavit  for  writ  of  assistance 2970 

121S.  Petition  for  attachment  for  contempt 2971 

1219.  Affidavit  in  support  of  petition  for  writ  of  attachment 2971 

1220.  Affidavit  in  support  of  petition  for  writ  of  attachment 2972 

1221.  Petition  for  rehearing 2972 

CHAPTER  LXXXYIII 

FEDERAL  FORM  FOR  IXTERLOGUTORT  ORDERS 

1222.  Formal  parts 2973 

1223.  Short  form  of  order  when  annexed  to  motion  or  petition 2973 

1224.  Summons  to  show  cause  with  restraining  order 2973 

1225.  Temporary  re^^training  order 2974 

1226.  Request  tor  order  pro  confesso 2975 

1227.  Order  taking  bill  pro  confesso 2975 

1228.  Order  to  take  bill  pro  confesso  (^ second  form) 2975 

1229.  Order  of  court  appointing  special  master  to  take  an  accounting.  .  .2975 

1230.  Order  of  couit  appointing  special  master  by  reason  of  exceptional 

conditions  2976 

1231.  Order  confirming  the  report  of  master 2976 

1232.  Order  of  sale  by  special  mast«r 2976 

1233.  Notice  of  sale  by  special  master 2977 

1234.  Order  confirming  sale  of  master 2977 

1235.  Order  of  notice  on  receiver's  petition  for  leave  to  sell  at  private 

sale .297S 

1236.  Order  on  receiver's  petition  to  be  allowed  to  pay  insurance  pre- 

^      miums 2978 

1237.  Order  confirming  final  report  of  receiver 2979 

1238.  Order  discharging  receiver 2979 

1239.  Order  for  writ  of  ne  exeat 2979 

CHAPTER  LXXXIX 
FEDERAL  FORMS   FOR   IXTERLOCTTORY  AND   FINAL  DECREES 

1240.  Formal  parts 2980 

1241.  Decree  pro  confesso 2980 


CONTENTS  OF  VOLUME  III  cxiii 

FORM  PAGE 

1242.  Decree  af)pointing  master 2980 

1243.  Decree  granting  preliminary  injunction  and  appointing  temporary 

receiver 2981 

1244.  Oath  of  receiver   2983 

1245.  Decree  appointing  temporary  receivers 2983 

1246.  Decree  appointing  ancillary  receiver 2985 

1247.  Order  of  notiee  on  petition  of  receiver 2986 

1248.  Interlocutory  decree  for  the  proof  of  claims 2987 

1249.  Decree  apjiointing  receiver  of  a  railroad 2987 

1250.  Decree  authorizing  receiver  to  sell  assets  at  private  sale 2990 

1251.  Decree    conlirming   receixer  's    ^ale 2991 

1252.  Decree   allowing   receiver's   third   report  and   ordering  a   partial 

distribution      2993 

1253.  Decree  authorizing  issuance  of  receiver's  certificates 2994 

1254.  Eeceiver  's    certificate    2995 

1255.  J"'inal  decree  with  permanent  injunction 2996 

1256.  Decree    of    revival 2997 

1257.  Consent  decree  on  bill  in  nature  of  a  bill  of  review 2997 

1258.  Decree  for  deficiency  under  liill  for  foreclosure 2998 

1259.  Final  decree  on  exceptions  to  master  's  report 2998 

1260.  Final  decree  on  bill  and  cross  bills 2999 

1261.  Final  decree  dismissing  restraining  order  and  giving  full  effect 

to  foreclosure  proceedings    2999 

1262.  Decree    dissolving    injunction 3000 

1263.  Consent  decree  declaring  plaintiff  owner  of  copyright  and  fixing 

damage     3000 

1264.  Final  decree  enjoining  infringement  of  trade  mark 3001 

CHAPTER  XC 
FEDERAL    FORMS    FOR    MASTERS'    AND    RECEIVERS'    REPORTS 

1265.  Formal   parts    3002 

1266.  Master's  report  of  profits  in  })ateut  case 3002 

1267.  Master  's  report  upon  receiver  's  petition 3003 

1268.  Master 's  report  of  sale 3004 

1269.  Plaintiff'  's  exceptions  to  master 's  report 3005 

1270.  Receiver  's  exceptions  to  master's  report 3006 

1271.  Defendant 's  exception  to  master  's  report 3006 

1272.  Receiver 's    report    3006 

CHAPTER  XCI 
FEDERAL   FORMS   FOR   PROCEEDINGS   ON   APPEAL 

1273.  Petition  on  appeal  to  Circuit  Court  of  Appeals  and  assignment 

of   errors    3007 

1274.  Petition  for  allowance  of  appeal  (another  form) 3007 

1275.  Petition  for  allowance  of  appeal  to  Supreme  Court 3008 

1 276.  Assignment  of  errors    3008 

1277.  Praecipe     3008 

1278.  Praecipe    (another    form) 3009 

1279.  Citation    on   appeal 3009 

1280.  Acknowledgment  of  service  of  citation 3010 

CHAPTER  XCII 
FEDERAL  FORMS  FOR  BONDS 

1281.  Bond  on  appeal 3011 

1282.  Bond  for  restraining  order 3011 

1283.  Receiver  's  bond    3012 


cxiv  FORMS 

FORM  PAGE 

1284.  Bond  for  security  for  costs 3013 

1285.  Bond  for  release  of  defendant  arrested  on  writ  of  ve  exeat 3013 

1286.  Special  bond  lor  damages  by  reason  of  injunction  and  seizure  of 

maps   and   plates 3014 

CHAPTER    XCIII 
FEDERAL  FORMS  FOR  WRITS 

1287.  Writ  for  seizure  of  property  claimed  to  infringe  a  copyright.  .  .  .3015 

1288.  Marshal 's  return    '. 3015 

1289.  Writ   of   in.iunction 3016 

1290.  Writ  of  venditioni  exponas 3016 

1291.  Writ  of  assistance 3017 

1292.  Writ  of  ne  exeat 3017 


EQUITY    PRACTICE 


VOLUME  I 


CHAPTER  I 

INTRODUCTION 

§  1.  Equity  defined.  Equity  as  defined  in  American 
jurisprudence  is  that  branch  of  remedial  justice  formerly 
administered  by  the  English  High  Court  of  Chancery,  in 
the  exercise  of  its  extraordinary  jurisdiction,  as  limited, 
modified  and  extended  by  American  statutes,  rules  of 
court,  and  judicial  construction  to  meet  the  require- 
ments and  exigencies  of  our  ever  changing  modern 
civilization.  It  is  sometimes  said  to  be  the  application 
of  natural  justice.  It  owes  its  origin  and  existence  to 
the  extreme  rigidity  of  the  ancient  rules  of  common  law. 

§  2.  Scope  of  this  work.  It  is  the  purpose  of  this 
book  to  describe  the  methods  of  applying  the  jurisdic- 
tion of  equity  which  are  still  in  operation  in  those  courts 
in  this  country  where  the  equity  system  of  procedure 
is  still  substantially  in  force.  In  these  introductory 
chapters,  therefore,  it  may  be  helpful  to  preface  the  dis- 
cussion of  the  matters  which  form  the  thesis  of  this 
work  with  a  brief  mention  of  the  sources  of  modern  equity 
jurisprudence,  followed  by  a  short  explanation  of  the 
extent  to  which  it  has  been  altered  or  affected  by  statutes. 
A  classification  of  American  states  with  respect  to  the 
several  systems  of  equity  procedure  will  be  found  useful, 
together  with  an  outline  of  the  several  branches  of  equity 
jurisdiction  which  those  systems  are  devised  to  admin- 
ister and  enforce. 

Whitehouse  E.  P.  Vol.  I— 1        1 


2  EQUITY  PRACTICE 

§  3.  Origin  of  equity  jurisdiction  and  procedure.    In 

its  inception  equity  was  administered  without  system  or 
precedent,  and  its  application  rested  entirely  in  the 
conscience  of  the  chancellor.  It  soon  developed,  how- 
ever, into  a  separate  system  of  jurisprudence,  governed 
largely  by  its  own  precedents  and  rules  and  supplement- 
ing the  deficiencies  of  the  common  law.  It  necessarily 
follows  that  the  ultimate  source  of  modern  equity  juris- 
prudence must  be  sought  in  the  extraordinary  jurisdic- 
tion of  the  individual  chancellor  and  of  the  High  Court 
of  Chancery  of  England,  Our  courts  of  last  resort  have 
accordingly  repeatedly  held  that  our  equity  jurispru- 
dence embraces  the  same  matters  of  jurisdiction  and  the 
same  mode  of  procedure  and  remedies  as  the  ancient 
English  chancery  practice,  unless  denied  or  limited  by 
express  legislative  enactment,  rule  of  court,  or  judicial 
construction. 

§  4.  American  equity  jurisdiction.  The  system  of 
jurisprudence  which  was  enforced  in  the  ancient  English 
chancery  practice  has  been  modified  in  the  United  States 
by  statutes  and  judicial  decisions  in  respect  to  both  the 
substantive  principles  and  the  procedure,  and  by  rules 
of  court  in  respect  to  the  latter.  In  the  case  of  the  sub- 
stantive principles  the  modifications,  though  sometimes 
radical,  have  not  differed  greatly  among  the  various 
states;  but  in  the  case  of  the  procedure,  the  states  have 
taken  divergent  courses. 

§  5.  Effect  of  statutes  in  enlarging  substantive  juris- 
diction of  equity.  The  statutes  which  chiefly  affect 
equity  jurisdiction  are  those  whicli  expressly  confer  upon 
the  equity  courts  additional  jurisdiction.  Examples  of 
these  are  statutes  giving  the  courts  of  equity  a  certain 
amount  of  jurisdiction  in  rem. 

§  6.  Statutes  limiting  substantive  jurisdiction  of  equity. 
Formerly  in  some  states  (e.  g.,  Maine  and  Massachusetts) 
the  statutes  which  conferred  upon  the  courts  jurisdiction 
in  equity  expressly  limited  their  powers.    These  statutes 


INTRODUCTION 


are  now  obsolete.  Except  for  occasional  statutes  which 
expressly  deprive  equity  of  jurisdiction  in  certain  special 
matters,  statutes  have  now  little  effect  in  depriving  equity 
of  jurisdiction  which  it  has  once  acquired.  Equity  is  not 
ousted  of  jurisdiction  merely  by  implication,  where  a 
statute  extends  the  powers  of  common  law  courts  to  cover 
matters  previously  within  the  jurisdiction  exclusively  of 
equity.^  Such  a  statute  merely  extends  to  the  courts  of 
law  a  concurrent  jurisdiction.  Especially  where  a  remedy 
at  law  of  statutory  origin  or  created  by  statutory  exten- 
sion is  still  inadequate  or  incomplete,  or  where  its  en- 
forcement is  prevented  by  some  obstacle  which  can  only 
be  removed  by  the  exercise  of  some  branch  of  equitable 
jurisdiction,  equity  retains  its  jurisdiction.^     As  will  be 


1.  Alabama.  Evans  v.  Wilhite, 
167  Ala.  587  (1910).  But  seo 
Asken  v.  Myrick,  54  Ala.  30 
(1875). 

Florida.  Deans  v.  Wilcoxon,  25 
Fla.  980  (1889);  Thrasher  v.  Doig, 
18   Fla.   809    (1882). 

Illinois.  Babcock  v.  McCamant, 
53  111.  214,  217  (1870);  McNab  v. 
Heald,  41  111.  326  (1886). 

Maryland.  Schroeder  v.  Loeber, 
75  Md.  195  (1892). 

Mississippi.  Mitchell  v.  Otey, 
23  Miss.  236   (1851). 

New  Hampshire.  In  re  London- 
derry Church,  51  N.  H.  424  (1871); 
Wells  V.  Pierce,  27  N.  H.  503 
(1853).  But  see  Miller  v.  Scam- 
mon,  52  N.  H.  609  (1873). 

New  Jersey.  Sweeny  v.  Wil- 
liams, 36  N.  J.  Eq.  627  (1883); 
Irick  V.  Black,  17  N.  J.  Eq.  189 
(1864). 

Pennsylvania.  M  o  r  1 1  a  n  d  v. 
Mortland,  151  Pa.  St.  593  (1892); 
Eessler  v.  Witmer,  1  Pears.  (Pa.) 
174   (1860). 

Tennessee.  Bright  v.  Newland, 
36  Tenn.  440    (1857). 


Virginia.  Shirkey  v.  Kirby,  110 
A^a.  455  (1909);  Kelly  v.  Lehigh 
Min.  and  Mfg.  Co.,  98  Va.  405,  81 
Am.  St.  Eep.  736  (1900);  Durrett 
V.  Davis,  24  Gratt.  (Va.)  302 
(1874). 

West  Virginia.  Harvey  v.  Eyan, 
59  W.  Va.  138,  7  L.  E.  A.  445 
(1906);  Corrothers  v.  Board,  16 
W.  Va.  527   (1880). 

United  States.  American  Ass'n 
V.  Williams,  166  Fed.  17,  93  C.  C. 
A.   1   (1908). 

But  see  Titeomb  v.  McAllister, 
77  Me.  353  (1885);  Weiss  v.  Levy, 
166  Mass.  290  (1896);  Torrent  v. 
Muskegon,  etc.,  Co.,  22  Mich.  354 
(1871). 

2.  Alabama.  Bolman  v.  Overall, 
80  Ala.  451,  60  Am.  Eep.  107 
(1886). 

Michigan.  Smith  v.  Donovan, 
158  Mich.  588  (1909);  Torrent  v. 
Muskegon  Booming  Co.,  22  .Mich. 
354  (1871). 

Mississippi.  McEae  v.  Walker,  5 
Miss.  455   (1840). 

New  Hampshire.  Eeynolds  v. 
Burgess,  etc.,  Co.,  71  N.  H.  332,  93 


4  EQUITY  PRACTICE 

seen,  however,  in  the  discussion  of  general  equity  juris- 
diction in  the  next  chapter,  where  jurisdiction  becomes 
concurrent  either  by  statutoiy  creation  or  by  enlargement 
of  legal  remedies,  a  court  of  equity  while  still  recogniz- 
ing its  own  jurisdiction  will  in  the  exercise  of  its  dis- 
cretion decline  to  act,  if  the  remedy  at  law  is  complete 
and  adequate,  unless  some  special  circumstance  or  feature 
exists  demanding  the  inteii^osition  of  equity.^ 

The  Federal  courts,  except  in  cases  atfected  or  con- 
trolled by  the  Practice  Conformity  Act,  (U.  S.  Rev.  St., 
Ch.  914)  are  not  deprived  of  equity  jurisdiction  because 
state  statutes  have  provided  complete  and  adequate 
remedies  at  law  in  such  cases. ^  On  the  other  hand  it  is 
held  that  state  statutes  giving  remedies  in  equity  do  not 
confer  Federal  equity  jurisdiction  in  such  case?.^  If, 
however,  a  state  statute  creates  a  right  and  a  remedy  in 
the  state  courts  for  its  protection  or  enforcement,  and 
such  remedy  substantially  conforms  to  the  procedure  in 
chancery,  the  right  may  be  protected  and  the  remedy 
pursued  on  the  equity  side  of  a  Federal  court,  in  the 
absence  of  a  plain,  adequate  and  complete  remedy  at  law.^ 

§  7.  Effect  of  judicial  construction  in  enlarging  or 
diminishing  the  jurisdiction  of  equity.  Modem  decision? 
expressly  limiting  the  previous  jurisdiction  of  equity 
are  rarely  or  never  found.    But  decisions  extending  equity 


Am.  St.  Rep.  535,  57  L.  B.  A.  949 
(1902   . 

New  Jersey.  Chamberlain  v. 
Chamberlain,   20  Atl.   1085    (1890). 

Rhode  Island.  Clark  v.  B.  I.  Lo- 
comotive Works,  24  E.  I.  307 
(1902^. 

United  States.  Jones  v.  Mutual 
Fi.lelitv  Co.,  123  Fed.  506  (1903^ 

3.  Hales  v.  Holland,  92  HI.  494 
(1879^.     See  §24,  post.  p.  22. 

4.  Smith  V.  Beeves,  17S  U.  S.  436. 
444,  44  L.  ed.  1140  (1899);  ^Hssis- 
sippi  Mills  V.  Cohan,  150  U.  S.  202, 


37  L.  ed.  10.52  (1893);  Peck  v. 
Avers  &  Co.,  116  Fed.  273,  53  C.  C. 
A.  551  (1902);  Sowles  v.  First  Xat. 
Bank.  100  Fed.  552  (1900);  Xoves 
V.  Willard,  1  Woods  187,  Fed.  Cas. 
No.  10,374  (1871):  Putnam  v.  New- 
Albany.  4  Biss.  365,  Fed.  Cas.  Xo. 
11,4S1  (1869). 

5.  Morrison  v.  Marker,  93  Fed. 
692   (1S99). 

6.  Jones  v.  Mutual  Fidelity  Co., 
123  Fed.  506,  518  (1903).  See 
?  25,  post,  p.  27. 


INTRODUCTION  5 

jurisdiction  are  so  common  as  even  to  have  aroused  some 
apprehension  on  the  part  of  those  who  do  not  appreciate . 
the  safeguards  which  equity  places  over  all  its  processes. 
Decisions  of  courts  of  law,  extending  the  scope  of  their 
remedies  so  as  to  make  them  cover  situations  where 
previously  equity  could  alone  give  an  adequate  remedy, 
like  the  corresponding  statutes  mentioned  in  Section  6 
above,  are  insufficient  to  deprive  equity  by  implication 
of  the  jurisdiction  over  the  subject  matter.  The  jurisdic- 
tion previously  exclusive  in  equity  merely  becomes  con- 
current with  law  as  a  result  of  such  decisions.'^ 

§  8.  Effect  of  statutes  on  procedure.  The  chief  effect 
of  statutes  upon  equity  jurisprudence  has  been  in  changing 
the  ancient  chancery  procedure.  In  more  than  half  the 
states  of  the  country,  codes  have  been  enacted  which 
assimilate  procedure  at  law  and  in  equity.  Such  states 
are  thereby  brought  into  a  class  with  which  this  book  is 
not  directly  concerned.  In  the  remaining  states,  statutes 
have  modified  merely  the  details  of  the  ancient  procedure, 
or  else  have  only  changed  the  structure  of  the  court, 
by  conferring  the  powers  of  the  chancellor  on  the  same 
judges  who  administer  the  common  law.^ 

§  9.  Effect  of  chancery  rules  on  procedure.  In  many  of 
the  states  rules  of  court  have  been  adopted,  under  the 
authority  of  statutes,  which  alter  in  details  the  original 
chancery  procedure.  These  rules,  however,  never  in 
themselves  so  radically  change  the  system  of  procedure 
that  thereby  a  state  loses  the  essential  features  of  the  old 
chancery  system.^ 

7.  niinois.     New  York  Note  Co.  Virginia.    Hull  v.  Watts,  95  Va. 

V.  Kerr,  77  HI.  App.  53   (1898).  10   (1897). 

New      Hampshire.       Walker      v.  8.  See   statutes   of   the   law  and 

Cheever,  35   N.   H.   339    (1857).  equity    states,    in   the    second    vol- 

New  Jersey.     Eeeves  v.  Morgan,  ume. 

48  N.  J.  Eq.  415  (1891).  9.  See    the    equity    rules    of    the 

Pennsylvania.      Eessler    v.    Wit-  several  jurisdictions,  in  the  second 

mer,  1  Pearson  (Pa.)  174  (1860).  volume. 

Vermont.     Viele  v.  Hoag,  24  Vt. 
46  (1851). 


6  EQUITY  PRACTICE 

§  10.  Systems  of  administration  of  equitable  principles. 
It  will  be  seen  from  the  foregoing  discussion  that  the 
systems  for  the  administration  of  equity  in  this  countiy 
may  be  divided  into  three  classes,  viz:  First,  Separate 
chancery  courts,  wholly  distinct  from  the  common  law 
courts;  Secondly,  Courts  where  law  and  equity  are  both 
administered  by  the  same  tribunal,  but  with  distinct  pro- 
cedure; Thirdly,  Courts  in  states  where  codes  of  procedure 
have  abolished  all  distinctions  between  procedure  at  law 
and  in  equity,  so  that  the  same  tribunal  administers  both 
law  and  equity  under  the  same  general  methods  of  pro- 
cedure. The  principles  and  authorities  considered  in  this 
book  do  not  apply  to  the  practice  in  the  courts  under  the 
third  system;  but  apply  to  the  first  two  systems  only, 
where  the  ancient  chancery  procedure  is  still  in  force, 
except  as  it  has  been  modified  in  details  by  chancer^' 
niles,  statutes,  and  decisions  of  court. 

§  11.  Classification  of  states  by  systems  in  force.  The 
following  are  the  states  of  the  third  class  just  men- 
tioned,— i.  e.,  the  so-called  ''code  states:"  Arizona, 
Arkansas,  California,  Colorado,  Connecticut,  Georgia, 
Idaho,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana,^" 
Minnesota,  Missouri,  Montana,  Nebraska,  Nevada,  New 
Mexico,  New  York,  North  Carolina,  North  Dakota,  Ohio, 
Oklahoma,  Oregon,  South  Carolina,  South  Dakota, 
Texas,  Utah,  "Washington,  Wisconsin  and  Wyoming. 
With  the  practice  in  these  thirtj^-one  states,  the  present 
work  is  not  concerned.  The  remaining  seventeen  states, 
viz.:  Alabama,  Delaware,  Florida,  Illinois,  Maine,  Mary- 
land, Massachusetts,  Michigan,  Mississippi,  New  Hamp- 
shire, New  Jersey,  Pennsylvania,  Ehode  Island,  Tennes- 
see, Vennont,  Virginia,  and  West  Virginia,  known  as 
the  ''law  and  equity"  states,  together  with  the  Federal 

10.  strictly    speaking,   Louisiana  ruled  by  the  civil  law  system  rather 

is   in   a  class  which   is   sui  generis,  than  by  the  English  system  of  com- 

since  it  has  neither  court  of  equity  mon  law  and  equity. 
nor    jurisdiction    in    equity,    being 


INTRODUCTION  7 

courts,  form  tlie  class  with  whose  chancery  procedure 
this  book  deals.  Of  these,  Alabama,^ ^  Delaware,  Missis- 
sippi, New  Jersey -and  Tennessee  have  separate  courts 
of  chancery,  as  in  England  under  the  ancient  chancery 
procedure,  while  in  the  others,  with  the  exception  of 
certain  separate  chancery  courts  such  as  those  in  the 
cities  of  Baltimore,  Maryland,  and  Richmond,  Virginia, 
the  chancery  powers  are  conferred  on  the  courts  of  law. 
The  compiled  statutes  of  Alabama,  Delaware,  Maryland, 
Mississippi,  Tennessee,  Virginia  and  West  Virginia  are 
called  ''codes,"  but  these  states  are  not  "code  states" 
in  the  sense  that  distinctive  methods  of  procedure  have 
been  abolished,  but  are  "law  and  equity  states,"  as  class- 
ified above. 

§  12.  Conclusion.  Having  thus  briefly  outlined  the 
origin,  sources,  and  systems  of  equity  jurisdiction  in  this 
country,  we  will  next  take  up  the  more  difficult  task  of 
sketching  a  brief  outline  of  general  equity  jurisdiction. 
Both  the  introduction  and  the  chapters  on  jurisdiction 
are  necessarily  elementary,  as  their  purpose  is  but  to 

11.  The  state  of  Alabama  is  di-  been  given  by  the  legislature  what 

vided  into  five  chancery  divisions,  are      named     "City     Courts"     or 

named  the  Northern,  the  Northeast-  "Law   and   Equity   Courts,"   with 

ern,   the  Northwestern,   the  South-  one    or    more    judges;     and    these 

eastern      and      the      Southwestern  courts  have  been  given  concurrent 

Chancery     Divisions,     respectively,  jurisdiction  of  both  law  and  equity 

and   each   division   is   divided   into  causes,    in    the    counties    in    which 

districts,  consisting  as  a  rule  of  one  they   have   been   created,   but   law 

county   each.      Over   each    division  and    equity   are    administered    sep- 

one    chancellor    presides,    and     he  arately    in    the    Law    and    Equity 

travels    from    district    to    district,  Courts,     although     by     the     same 

holding   a   chancery   court   in   each  judges. 

district    of    his    division    twice    in  Moreover,  in  three  counties,  Jef- 

each    year,    as    provided    by    law;  ferson,    Walker    and    Winston,   the 

with    authority   to   hold   additional  Circuit  Court  has  been  given  equity 

special  terms  as  may  be  necessary  jurisdiction  in  addition  to  its  juris- 

to    carry    on    the    business    of    his  diction    at    law.     Lastly,    in    Lee 

court.  county,  the  "Chancery  Court"  has 

In  addition  to  the  chancery  been  abolished,  and  equity  is  ad- 
court,  however,  many  counties,  ministered  solely  in  a  "Law  and 
chiefly   those   most   populous,   have  Equity   Court." 


8  EQUITY  PRACTICE 

outline  and  classify  succinctly  the  nature  and  scope  of 
the  several  branches  of  equity  jurisdiction  which  the 
methods  of  practice  and  form  of  procedure  set  forth  in 
this  book  are  calculated  and  established  to  administer 
and  enforce. 


CHAPTER  II 
GENERAL  EQUITY  JURISDICTION 

§  13.  General  equity  jurisdiction.  It  is  important  to 
start  with  a  clear  definition  of  the  word  jurisdiction,^ 
which  is  often  confused  in  statutes,  decisions  and  text 
books  with  the  larger  term  jurisprudence. - 

Jurisprudence  means  an  entire  iDhilosophy  or  system 
of  law,  while  jurisdiction  means  the  power  of  a  court, 
established  for  the  administration  of  that  system  of  law, 
to  exercise  judicial  authority  over  certain  subject  mat- 
ters in  accordance  with  the  principles  of  that  system. 
Thus  it  will  be  seen  that  the  term  jurispimdence  is  broad 
enough  to  include  within  its  scope  the  principles  deter- 
mining the  limits  of  jurisdiction,  but  jurisdiction  is  only 
a  small  portion  of  the  entire  system  of  jurisprudence. 
Yet  we  frequently  find  the  term  equity  jurisdiction  used 
when  the  entire  system  of  equitable  principles  is  meant, 
and  a  decision  by  the  court  that  it  has  no  jurisdiction  over 
the  cause,  is  confused  with  a  decision  that  under  the 
facts  of  that  particular  case,  the  relief  prayed  for  ought 
not  to  be  granted,  or  in  other  words,  with  a  refusal  to 
exercise  in  behalf  of  the  plaintiff,  a  jurisdiction  which  it 
may  unquestionably  possess.  The  term  equity  jurisdic- 
tion, therefore,  used  in  these  chapters,  is  to  be  taken 

1.  standard  Dictionary:  "Juris-  2.  Standard  Dictionary:  "Juris- 
diction. Law  (1)  Lawful  power  or  prudence.  Law  (1)  The  philosophy 
right  to  exercise  official  authority,  of  positive  law  and  its  administra- 
whether  executive,  legislative  or  ju-  tion.  (2)  The  laws  collectively  of 
dicial.  (2)  The  territory  within  or  a  particular  country  as  a  system,  as 
the  matter  over  which  such  official  Eoman  jurisprudence." 
authority  may  be  lawfully  exer- 
cised." 


10 


EQUITY  PKACTICE 


only  in  its  strict  and  proper  sense,  and  the  maxims  and 
principles  of  equitable  jurisprudence  in  general  will  not 
be  discussed,  since  they  cover  a  broad  lield  entirely 
beyond  the  scope  of  this  work. 

§  14.  Jurisdiction  further  defined.  The  words  equity 
jurisdiction,  however,  require  still  further  definition. 
When  we  say  that  equity  has  no  jurisdiction,  we  use  the 
phrase  almost  exclusively  with  reference  to  the  jurisdic- 
tion of  courts  of  equity  as  compared  with  that  of  courts 
of  common  law,  and  we  do  not  mean  that  if  the  court  took 
jurisdiction  of  a  cause  belonging  to  the  jurisdiction  of 
the  common  law  and  decided  the  case,  that  such  decision 
would  be  null  and  void  as  in  the  case  of  a  court  of  civil 
jurisdiction  only,  taking  cognizance  of  a  criminal  cause 
or  the  like.  We  mean  simply  this,  that  a  court  estab- 
lished to  administer  the  principles  of  equity  juris- 
pnidence  must  confine  its  jurisdiction  within  the  limits 
prescribed  by  those  principles  and  not  trespass  upon  the 
realms  of  the  law;  and  if  the  fact  that  a  given  cause  is 
not  within  those  limits  is  perceived  by  the  court  of  its 
own  accord  or  pleaded  by  demun*er,  it  is  the  duty  of  the 
court  to  refuse  to  hear  the  case,  or  if  it  should  hear  and 
decide  it  that  such  decision  would  be  erroneous  and  liable 
to  revision  on  appeal  or  to  subsequent  oven-uling,  but 
until  such  revision  it  stands  as  valid. 

We  are  now  ready  for  our  complete  definition,  which 
may  be  framed  as  follows,  viz.:  general  equity  jurisdic- 
tion is  the  power  possessed  by  a  court  of  exercising 
judicial  authority  over  certain  subject  matters,  in  accord- 
ance with  the  principles  of  equity  jurispnidence  as  illus- 
trated by  the  decisions  of  the  English  High  Court  of 
Cliancery  and  the  courts  of  chanceiy  in  this  country  pos- 
sessing equal  powers.^ 


3.  Illinois.  People  v.  Kizer,  151 
111.  App.  6  (1909);  Mahar  v. 
O'Hara,  9  HI.  424  (1S47). 


Maryland,      Amelung      v.      See- 

kamp.  9  Gill  &  J.  (Md.)  468  (1838). 

Massachusetts.       Charles     Biver 


GENERAL  EQUITY  JURISDICTION  11 

§  15.  The  extent  of  general  equity  jurisdiction.    With 

reference  to  its  extent  the  term  equity  jurisdiction,  as 
defined  above,  is  used  almost  entirely  in  distinction  from 
the  term  common  law  jurisdiction,  and  the  most  difficult 
task  of  equity  jurisprudence  in  prescribing  the  limits 
within  which  its  courts  shall  act,  is  in  fixing  the  guiding 
line  between  them  and  courts  of  law.  Doubtless  owing 
to  the  fact  that  the  present  jurisdiction  of  chancery  was 
acquired  by  a  series  of  progressive  invasions  of  the  juris- 
diction of  the  common  law  courts,  conceived  without 
settled  plan  and  executed  without  system,  a  general 
classification  of  the  subject  matter  of  equity  jurisdiction 
correct  in  theory  as  well  as  practical  and  helpful,  is  yet 
to  be  discovered.  Without  question  the  result  of  classi- 
fication has  been  attended  with  great  uncertainty  of 
terms  and  theoretical  inconsistency. 

§  16.  Classification.  Without  discussing  the  merits  of 
either  of  the  two  systems  usually  adopted  by  the  text 
writers,  we  have  adopted  and  shall  use  in  this  text  a 
classification  for  the  measurement  of  the  extent  of  equity 
jurisdiction  based  solely  upon  the  general  subject  matter 
over  which  a  court  of  equity  has  the  power  to  exercise 
judicial  authority.  Measured  upon  this  basis  general 
equity  jurisdiction  is  logically  divided  into  four  classes, 
exclusive,  concurrent,  auxiliary  and  incidental  jurisdic- 
tion. 

§  17.  What  constitutes  subject  matter.  Before 
attempting  to  apportion  the  subject  matter  of  equity 
jurisdiction  under  the  heads  of  the  above  classification 

Bridge  v.  Warren  Bridge,  6  Pick.  &  H.   Canal  Co.,  6  Luz.   Leg.   Eeg. 

(Mass.)   376   (1828);  Jones  v.  Bos-  73   (1877). 

ton  Mill  Corp.,  4  Pick.  (Mass.)  507,  Tennessee.     Kelly  &  Co.  v.  Con- 

16  Am.  Dec.  358  (1827).  nor,  122  Tenn.  339   (1909). 

Mississippi.      Smith    v.    Everett,  United  States.    Payne  v.  Hook,  7 

50  Miss.  575  (1874).  Wall.    (U.   S.)    425,   19    L.   ed.    260 

New   Jersey.      West   v.   Paige,  9  (1868) ;  Smith  v.  Burnham,  2  Sumn. 

N.  J.  Eq.  203  (1852).  612,  Fed.  Cas.  No.  13,018  (1837). 

Pennsylvania.  Genet  v.  Delaware 


12  EQUITY  PRACTICE 

it  becomes  necessary  to  determine  definitely  just  what 
this  subject  matter  includes.  Equity  jurisprudence 
created  purely  equitable  titles,  estates  and  interests,  such 
as  tmst  estates,  equities  of  redemption  and  equitable 
liens,  and  purely  equitable  personal  rights,  and  duties 
such  as  rights  arising  out  of  the  partnership  relation, 
rights  in  the  construction  and  interpretation  of  wills  and 
the  rights  of  the  assignee  of  a  chose  in  action  all  of  which 
were  fonnerly  unrecognized  by  the  courts  of  common 
law,  but  which  these  courts  now  recognize  and  enforce. 
It  is  obvious  that  equity  jurisdiction  must  recognize, 
protect  and  enforce  all  these  matters  which  are  the  sole 
creation  of  its  own  jurisprudence.  But  equity  jurisdic- 
tion includes  more  than  this.  By  reason  of  the  efficiency 
of  its  peculiar  remedies  it  has  reached  out  and  assisted 
in  protecting  and  enforcing  purely  legal  titles,  rights 
and  duties,  and  brought  them  within  its  field  of  action;  "* 
for  instance  by  defining  legal  titles  to  land,  as  in  par- 
tition and  disputed  boundaries,  and  by  enforcing  certain 
rights  arising-  out  of  the  relations  of  contract  and  quasi 
contracts,  i.  e.  arising  from  fraud,  accident  or  mistake, 
where  the  law  has  not  always  provided  an  adequate 
remedy.  Therefore  the  subject  matter  of  equity  juris- 
diction is  to  be  measured  and  described  in  tenns  of  prop- 
erty titles,  estates  and  interests,  and  in  terms  of  personal 
rights  and  duties  both  legal  and  equitable. 

§  18.  Exclusive  jurisdiction.  Taking  up  the  first  divi- 
sion under  the  method  of  classification  adopted,  we  may 
say  that  the  field  of  the  exclusive  jurisdiction  of  equity 
includes  all  cases  where  the  subject  matter, — the  estate 
or  interest,  right  or  duty  involved, — is  purely  equitable, 
created  solely  by  equity  and  not  recognized  or  remedied 

4.  People  V.  Chicago,  53  111.  424  Spain,    15    Wall.    211,    228    (1872); 

(1870);  Coons  v.  Coons,  95  Va.  434,  Leighton  v.  Young,  52  Fed.  439,  3 

64  Am.  St.  Rep.  804   (1897);   Root  C.    C.   A.    176,    10    U.   S.   App.    298 

V.  Railroad  Co.,  105  U.  S.  207,  209,  (1892). 
26   L.   ed.   975    (1881);   Oelrichs   v. 


GENERAL  EQUITY  JURISDICTION 


13 


by  the  law.  This  includes  all  cases  of  trusts,  except 
cases  where  the  plaintiff  can  recover  the  trust  fund  by 
an  action  of  assumpsit  at  law  for  money  had  and 
received;  also  equities  of  redemption,^  equitable  liens, 
and  equitable  estates  arising  from  the  doctrine  of  con- 
version ;  ^  certain  rights  arising  from  the  partnership 
relation;"  the  construction  of  wills ;^  and  the  partition 
of  personal  property.**  Formerly  equity  had  exclusive 
jurisdiction  under  the  doctrine  of  trusts  over  the  admin- 
istration of  estates  and  married  women's  separate  prop- 
erty, but  the  administration  of  estates  is  now  given 
over  almost  entirely  to  probate  and  orphans'  courts,  and 
the  jurisdiction  still  existing  in  the  equity  courts  falls 
into  the  concurrent  class. ^^  In  the  case  of  married 
women  the  Married  Women  Acts  in  the  several  states 
have  had  the  effect  of  doing  away  with  this  branch  of 
equity  jurisdiction.    Once  the  equitable  estate  possessed 


5.  Pomeroy's   Eq.   Jurisp.    §162. 

6.  Pomeroy's  Eq.  Jurisp.  §§  151- 
162,  165. 

7.  Except  where  a  final  account 
of  all  partnership  affairs  has  been 
rendered,  when  an  action  at  law 
will  lie  for  the  balance.  In  no 
other  case  can  one  partner  sue  an- 
other at  law  upon  any  matter  re- 
lating to  the  partnership.  Mer- 
win's  Eq.  884. 

8.  Aside  from  statutes,  neither 
courts  of  general  common  law  juris- 
diction nor  probate  courts  have  any 
jurisdiction  over  suits  brought  for 
the  construction  of  wills. 

9.  Alabama.  Thompson  v.  Thomp- 
son, 107  Ala.  163   (1894). 

Delaware.  Bradford  v.  Robin- 
son, 7  Houst.  (Del.)  29  (1884). 

Maryland.  Lawes  v.  Lumpkin, 
18  Md.  334  (1862). 

Massachusetts.  Haven  v.  Haven, 
181  Mass.  573  (1902). 


Michigan.  Godfrey  v.  White,  60 
Mich.  443,  1  Am.  St.  Rep.  537 
(1886). 

Mississippi.  Porter  v.  Stone,  70 
Miss.  291   (1892). 

New  Hampshire.  Pickering  v. 
Moore,  67  N.  H.  533,  68  Am.  St. 
Rep.  695,  31  L.  R.  A.  698  (1893). 

New  Jersey.  Terry  v.  Smith,  42 
N.  J.  Eq.  504  (1887),  partition  of 
an  estate  and  mixed  real  and  per- 
sonal property;  Wetmore  v.  Za- 
briski,  29  N.  J,  Eq.  62   (1878). 

Rhode  Island.  Bailey  v.  Sisson, 
1  R.  I.  233   (1849). 

Virginia.  Smith  v.  Smith,  4 
Rand.   (Va.)   95   (1826). 

United  States.  Daniels  v.  Bene- 
dict, 50  Fed.  347  (1892),  partition 
of  an  entire  estate  of  mixed  real 
and  personal  property. 

10.  See  §  24,  note  86,  post,  p.  22. 


14  EQUITY  PRACTICE 

by  the  assignee  of  a  chose  in  action  was  also  exclusively 
within  the  jurisdiction  of  equity  but  now  the  jurisdiction 
is  at  most  only  concurrent  with  that  of  courts  of  law.^^ 

§  19.  Concurrent  jurisdiction.  In  the  broad  field  of 
the  concurrent  jurisdiction  of  equity  the  subject  matter 
includes  all  titles,  rights  and  duties,  whether  originally 
created  by  equity  or  law,  which  are  recognized  and 
enforced  by  both  law  and  equity.  These  may  be  divided 
into  the  following  general  heads,  viz. :  rights  growing  out 
of  trust  relations  where  a  fund  is  impressed  with  a  trust ; 
rights  of  assignees  of  choses  in  action;  rights  arising 
from  fraud,  accident,  and  mistake,  where  these  rights 
constitute  the  sole  ground  of  jurisdiction;  contracts  for 
the  acquisition  of  things  of  special  or  peculiar  value; 
mutual  and  complicated  accounts,  where  the  account  con- 
stitutes the  sole  ground  of  jurisdiction;  rights  of  con- 
tribution arising  out  of  the  relations  of  suretyship  and 
the  like;  rights  of  creditors  to  reach  and  apply  property 
of  debtors;  rights  arising  from  the  joint  or  common 
ownership  of  land,  as  where  partition,  assignment  of 
dower  or  adjustment  of  boundaries  is  required;  rights 
arising  from  nuisance,  waste,  and  other  torts  where  com- 
pensation in  damages  is  less  adequate;  rights  and  titles 
which  involve  a  multiplicity  of  legal  suits  for  their  pro- 
tection; and  right  to  relief  from  void  and  illegal  contracts 
or  from  actions  or  judgments  on  the  same. 

§20.  — Meaning  of  the  term.  This  statement  of  the 
concurrent  jurisdiction  of  equity  power  requires  extended 
explanation.  In  the  first  place  it  is  well  to  make  clear  in 
just  what  sense  we  are  using  the  word  concurrent  in  the 
above  definition.  Unquestionably  the  only  sense  in 
which  the  word  concurrent  can  be  employed  with  any 
practical  helpfulness  is  in  the  sense  of  absolutely  elective 
jurisdiction,  which  gives  the  moving  party  his  option  as 

11.  Donk   V.   Alexander,   117  111.       1  Wash.  (U.  S.)  424,  Fed.  Cas.  No. 
330   (1886);   French  v.   Peters,  177       3,255   (1806). 
Mass.  568   (1901);  Corser  v.  Craig, 


GENERAL  EQUITY  JURISDICTION  15 

to  whether  he  will  seek  his  remedy  in  equity  or  at  law. 
Employing  the  term  with  this  meaning,  therefore,  the 
concurrent  jurisdiction  of  equity  may  be  said  to  include 
two  classes  of  cases,  first  those  where  the  remedy  at  law 
is  less  convenient,  complete  or  adequate  than  in  equity, 
and  the  second  where  courts  of  law  and  equity  both 
furnish  an  adequate  remedy. 

§  21.  Concurrent  equitable  jurisdiction  of  purely  legal 
rights.  It  may  seem  somewhat  questionable  at  first  to 
include  cases  where  the  remedy  at  law  is  less  adequate 
under  the  concurrent  jurisdiction  of  law  and  equity,  yet 
according  to  every  proper  test  such  a  classification  must 
undoubtedly  be  correct.  In  spite  of  the  superior  advan- 
tages afforded  by  the  equitable  remedy,  the  power  of  a 
court  of  law  to  exercise  judicial  authority  over  the  subject 
matter  by  hearing  the  cause  and  applying  its  own  remedy 
still  remains  and  is  still  exercised,  and  the  moving  party 
still  has  his  option  whether  he  will  seek  his  remedy  at 
law  or  in  equity.  This  class  of  cases  includes  rights 
arising  out  of  the  contractual  relations  where  the  law 
gives  damages  for  the  non-performance  while  equity 
gives  specific  performance;  yet  the  plaintiff  often  elects 
to  take  his  legal  remedy  and  of  course  has  a  perfect  right 
to  do  so.  It  includes  also  cases  under  the  heads  of 
accident  or  mistake  where  the  remedy  in  equity  is  more 
complete,  such  as  forfeitures  and  defective  execution  of 
powers  coupled  with  a  trust  under  the  former  head,  and 
reformation  and  many  instances  of  cancellation  under 
the  latter  head.  Bills  to  reach  and  apply  property  of 
debtors  are  included,  for  while  the  law  at  the  present 
day  provides  many  remedies  for  reaching  and  applying 
property  of  debtors  such  as  attachment,  seizure,  levy 
and  disclosure  process,  these  legal  remedies  are  often 
inadequate.  Accounts  fall  in  the  same  class  because  of 
the  inadequacy  of  the  legal  remedies  of  account-render 
and  assumpsit  for  a  determinate  balance  in  many  of  such 
cases.    Equity  has  intervened  to  lend  its  aid  in  cases  of 


16  EQUITY  PRACTICE 

mutual  and  complicated  accounts  and  other  cases  of 
account  where  the  legal  action  was  inadequate,  and  this 
is  the  extent  of  equity  jurisdiction  in  matters  of  account 
at  the  present  time.^- 

Xuisance,  waste,  infringements  of  copyrights  and  trade 
marks,  libels,  trespasses  and  other  torts  where  compensa- 
tion in  damages  would  be  inadequate  come  within  this 
concurrent  class.  In  these  cases  equity  provides  the  pre- 
ventive remedy  of  injunction,  while  the  legal  remedy  is 
compensation  by  the  way  of  damages:  but  the  rights 
enforced  and  protected  are  the  same  both  at  law  and  in 
equity,  and  the  jurisdiction  of  equity  is  only  exercised 
where  damages  at  law  are  insufficient.  Questions  of  dis- 
puted boundaries  certainly  belong  in  this  general  con- 
current classification.  Equity  jurisdiction  to  avoid 
multiplicity  of  suits  really  rests  on  the  advantages  of  the 
equitable  remedy,  which  does  complete  justice  in  one 
action  while  the  law  would  require  an  indefinite  number, 
although  the  right  enforced  or  protected  in  equity  is  the 
same  as  that  remedied  by  the  many  suits  at  law;  and 
therefore  bills  to  prevent  multiplicity  of  suits  fall  within 
this  concurrent  class.  The  distinguishing  feature  in  the 
cases  under  this  general  concurrent  classification  is  the 
right  of  election  of  remedy,  as  between  law  and  equity, 
existing  in  the  moving  party.  These  cases  all  fall  within 
the  general  rule  that  when  a  party  has  two  remedies  given 
by  law  he  has  his  election,  and  cannot  be  compelled  to 
take  either  one.^^    Accordins:lv  he  can  not  be  obliged  to 


12.  Bichardson    v.   Stillinger.    12  with  the  law  even  though  the  rem- 

G.  &  J.   (Md.)   477   (1S42);  Fly  v.  edv  at  law  be  adequate.     Petrie  v. 

CraBe,    10    Stewart     (X.    J.)     loS  Torrent.  SS  A£ieh.  43   (1S91);   Wil- 

(1883) ;  Grafton  V.  Beed,  26  W.  Va.  son    v.    Mallett,    4    Sand.    (X.    Y.) 

437   (1885).  112    (1S.50^. 

In  Michigan  and  New  York,  how-  13.  Barron  v.  Easton,  3  Iowa  79 

ever,    it    has    been    decided    that  (1856). 
equity    jurisdiction    is    concurrent 


GENERAL  EQUITY  JURISDICTION  17 

choose  equity  even  when  the  remedy  at  law  is  inade- 
quate/^ 

§  22.  Where  the  law  has  encroached  on  the  concurrent 
jurisdiction  of  equity.  It  is  an  ancient  and  trite  princii^le 
of  equity  jurisprudence  that  courts  of  chancery  will  not 
take  jurisdiction  when  there  is  a  plain,  adequate  and  com- 
j)lete  remedy  at  law.  This  principle,  however,  must  be 
understood  as  referring  to  the  original  condition  of  law 
and  equity,  at  a  period  when  equity  was  establishing  its 
jurisdiction,  and  before  the  remedial  powers  of  the  law 
courts  had  been  enlarged  by  the  action  of  these  courts 
or  extended  by  statute.  As  a  statement  of  the  law  as  it 
stands  today  it  is  untrue  and  misleading.  Today  it  is 
more  correct  to  say  that  equity  will  not  take  jurisdic- 
tion where  the  law  has  always  provided  an  adequate 
remedy.  It  is  a  firmly  established  principle  of  equity 
jurisprudence  that  when  equity  has  once  acquired  juris- 
diction over  a  subject  matter  it  will  not  be  ousted  of  that 
jurisdiction  through  the  encroachment  of  common  law 
courts,  by  adopting  equitable  methods  and  remedies,  nor 
even  by  express  statutes  granting  such  remedies,  unless 
the  statute  by  prohibitive  words  clearly  so  states  or  by  its 
whole  scope  and  construction  plainly  so  intends.^^ 

This  class  of  cases  where  the  courts  of  law  have  taken 
concurrent  jurisdiction  of  equitable  matters  is  very  large. 
For  example,  even  those  primary  rights  originally  created 
solely  by  equity  have  come  to  be  recognized  and  enforced 
at  law.  This  class  includes  cases  of  funds  impressed  with 
a  trust,  which  the  law  now  recognizes  and  enforces  by  an 
action  of  assumpsit  for  money  had  and  received,^'^  and 


14.  Skeen  v.  Springfield  Co.,  42  patriek  v.  McDonald,  11  Pa.  St. 
Mo.  App.  158  (1890).  387,  392    (1849).     But  see  Euss   v. 

15.  Story's  Eq.  Jur.  §80;  Wilson,  22  Me.  207  (1842),  and 
Pomeroy's  Eq.  Jur.  §§176,  182.  Crooker  v.  Kogers,  58  Me.  339 
See  §    6,  Note  1,  ante,  p.  3.  (1870),    which    were    instances    of 

16.  Loan  Association  v.  Lyon,  2  breaches  of  contract. 
Stewart   (N.  J.)   110   (1878);  Kirk- 

Whitehouse  E.  P.  Vol.  I — 2 


18 


EQUITY  PRACTICE 


tlie  rights  of  assignees  of  choses  in  action/"  originally 
recognized  solely  in  equity  now  enforced  more  frequently 
at  law.  Again,  in  those  cases  where  the  jurisdiction  of 
equity  originally  attached  to  purely  legal  rights  by  reason 
of  the  failure  of  the  common  law  to  provide  any  adequate 
relief,  the  law  has  now  come  to  provide  a  remedy  suffi- 
ciently etfectual  and  complete.  This  class  includes  the 
entire  heading  of  fraud ;^^  under  the  head  of  accident, 
cases  for  recovery  on  lost  instniments,^^  for  relief  from 
judgments  obtained  through  accident,-'-  and  for  relief 
from  penalties;  -^  under  the  heading  of  mistake,  cases  for 


17.  Equitable  jurisdiction  in  such 
cases  is  practically  very  much  lim- 
ited because  a  court  of  equity  will 
not  now  entertain  a  suit  brought 
by  an  assignee  of  a  debt  or  a  chose 
in  action  which  is  a  mere  legal 
demand.  See  Ontario  Bank  v. 
Mumford,  2  Barb.  Ch.  (X.  Y.)  596 
(1848). 

18.  Illinois.  Hooker  v.  Barton, 
84  111.  313  (1876);  Douglass  v. 
Hartzell,  15  111.  App.  251  (1884). 

Maine.  Merrill  v.  McLaughlin, 
75  Me.  582  (1884);  Taylor  v.  Tay- 
lor, 74  Me.  582  (1883). 

Maryland.  Tatman  v.  Mitchell, 
1  Md.  Ch.  399  (1849). 

Massachusetts.  Nathan  v.  Na- 
than, 166  Mass.  294   (1896). 

Michigan.  City  of  Battle  Creek 
V.  Haak,  139  Mich.  514  (1905); 
Cogswell  V.  Mitts,  90  Mich.  353 
(1898);  Tompkins  v.  Holister,  60 
Mich.  470  (1886).  But  see  Wright 
V.   Hake,   38   Mich.   525    (1878). 

New  Hampshire.  Alden  v.  Gib- 
son, 63  N.  H.  12  (1883). 

New  Jersey.  Moore  v.  Gamble, 
9  N.  J.  Eq.  246  (1852). 

West  Virginia.  Crockett  v.  Bur- 
leson, 60  W.  Va.  252,  6  L.  R.  A.  263 
(1906). 


Contra.  ^leek  v.  Spracher,  87 
Ya.   169    (1890). 

19.  Alabama.  Mobile  Branch 
Bank  v.  Tilman,  12  Ala.  214  (1847). 

Illinois.  Patton  v.  Campbell,  70 
HI.  72  (1873);  Robinson  v.  Shessel- 
dine,  4  Scammon  (111.)  332  (1843). 

New  Hampshire.  Hill  v.  Barney, 
18  X.  H.  607  (1848). 

New  Jersey.  Force  v.  City  of 
Elizabeth,  27  N.  J.  Eq.  408  (1876). 

Vermont.  Lazell  v.  Lazell,  12 
Vt.  443,  36  Am.  Dec.  352  (1840). 

Virginia.  Shields  v.  Common- 
wealth, 4  Rand.   (Va.)   541   (1826). 

West  Virginia.  Lyttle  v.  Cozad, 
21  W.  Ya.  183  (1882);  Mitchell  v. 
Chancellor,  14  W.  Ya.  22  (1878). 

20.  Maryland.  Darling  v.  Bal- 
timore, 51  Md.  1   (1879). 

New  Hampshire.  Robinson  v. 
Wheeler,  51  X.  H.  384  (1871). 

New  Jersey.  Cairo  R.  R.  v. 
Titus,  27  X.  J.  Eq.  102  (1876); 
Hayes  v.  U.  S.  Phonograph  Co.,  65 
N.  J.  Eq.  5  (1903). 

Vermont.  Fairbank  v.  Rocking- 
ham, 73  Vt.  124  (1901). 

Virginia.  Mayo  v.  Bentley,  4 
Call.   (Ya.)  528   (1800). 

21.  Reynolds  v.  Pitt,  19  Yqs.  Sr. 
134;   note  to   Peachy  v.   the   Duke 


GENERAL  EQUITY  JURISDICTION 


19 


the  recovery  of  money  paid  under  mistake,^^  and  for 
relief  from  judgments  obtained  tlirough  mistake;  ^^  con- 
tribution; ^^  partition;--^  dower; ^^  and  actions  for  relief 
from  illegal  and  void  contracts  or  from  judgments  on  the 
same.2'^  In  all  such  cases  it  is  now  settled  by  the  great 
weight  of  authority  in  England  and  America  that  equity 
will  not  be  ousted  of  its  jurisdiction  simply,  as  Lord  Eldon 
puts  it,2^  "because  a  court  of  law  happens  to  fall  in  love 
with  the  same  or  a  similar  jurisdiction,"  but  such  juris- 
diction remains  and  will  be  exercised  concurrently  with 
the  law  in  such  cases  ^^  even  though  the  remedy  at  law  be 
adequate  and  complete.  Thus  the  working  of  this  princi- 
ple of  equity  jurisprudence  is  seen  to  be  the  basis  of  a 
continuous  extension  of  the  field  of  concurrent  jurisdic- 
tion which  is  somewhat  far  reaching  and  surprising  in  its 
results  under  modem  conditions,  and  as  it  has  been  but 


of  Somerset,  1  Str.  447,  2  W.  7; 
Leading  Cases  in  Equity,  1247; 
Jackson  v.  Baker,  2  Edw.  (N.  Y.) 
471   (1836). 

22.  Bingham  v.  Bingham,  1  Ves. 
Sr.  126  (Eng.  Ch.). 

23.  Chicago,  etc.,  E.  E.  Co.  v. 
Hay,  119  111.  493  (1887);  Webster 
V.   Skipwith,   26  Miss.   341    (1853). 

24.  Heath  v.  Bank,  44  N.  H.  177 
(1862);  Walker  v.  Cheever,  35 
N.  H.  345  (1857);  Sweeny  v.  Wil- 
liams, 9  Stewart  (N.  J.)  627 
(1883);  Vielne  v.  Hoag,  24  Vt.  46 
(1851). 

25.  The  early  common  law  writ 
of  partition  was  very  cumbersome, 
so  equity  intervened,  but  the  in- 
troduction of  the  modern  statutory 
petition  at  law  for  partition  has 
not  ousted  equity.  Labadie  v. 
Hewett,  85  HI.  343  (1877);  Hess  v. 
Voss,  52  HI.  476  (1869);  Nash  v. 
Simpson,  78  Me.  142  (1886).  And 
jurisdiction    for    partition    of   per- 


sonal property  belongs  exclusively 
to  equity. 

26.  Some  states  have  done  away 
with  dower,  and  in  most  of  the 
others  the  jurisdiction  over  dower 
conferred  upon  the  probate  courts 
has  practically  abrogated  the  juris- 
diction of  equity,  but  in  the  states 
still  retaining  equity  jurisdiction 
and  in  England  the  jurisdiction  is 
concurrent.  Hartshorne  v.  Hart- 
shorne,  2  N.  J.  Eq.  349   (1840). 

See  also  Collins  v.  Blantern, 
2  Wils.  (Eng.)  341  (1767);  Han- 
ington  Ex.  v.  Du-Chatel,  1  Brown's 
Ch.  (Eng.)  124  (1782);  Bromley  v. 
Holland,  7  Vesey  (Eng.)  3  (1802) ; 
Maise  v.  Garner,  18  Tenn.  382 
(1828);  Porter  v.  Jones,  6  Cald- 
well (Tenn.)  313  (1869). 

27.  Gough  v.  Pratt,  9  Md.  526 
(1856) ;  Humphries  v.  Bartel,  10  S. 
&  M.  (Miss.)  282  (1848). 

28.  Eyre  v.  Everett,  2  Euss.  381, 
382   (1826). 

29.  See  §    24,  post,  p.  22. 


20  EQUITY  PRACTICE 

slightly  considered  in  the  majority  of  the  text  books  it 
demands  an  examination  of  the  authorities  and  cases  on 
this  subject  both  English  and  American. 

§  23.  — English  doctrine.  The  doctrine  was  first  laid 
down  by  the  English  courts  as  early  as  1723  in  the  case 
of  Colt  V.  Wollaston,  2  P.  Wms.  154.  This  was  a  bill  in 
equity  to  recover  money  paid  on  a  fraudulent  project  or 
"bubble."  The  Master  of  the  Rolls  said:  "It  is  no 
objection  that  the  parties  have  their  remedy  at  law  and 
may  bring  an  action  for  moneys  had  and  received  for  the 
plaintiff's  own  use,  for  in  case  of  fraud,  the  court  of 
equity  has  a  concurrent  jurisdiction  with  the  common 
law,  matter  of  fraud  being  the  subject  of  relief  here. 
Accordingly  cases  of  this  nature  have  frequently  met 
with  relief  in  this  court."  This  decision  has  been  fre- 
quently cited  and  followed  in  much  stronger  language  in 
an  almost  unbroken  line  of  decisions  ^'^  down  to  1873, 
when  the  reformed  code  of  civil  procedure  was  adopted 
in  the  Supreme  Court  of  Judicature  Act,  and  actions  at 
law  and  suits  in  equity  were  combined  in  one  civil  action 

30.  Fraud.      (Money  recoveries.)  8   Eq.   301    (1869);    Hill   v.    Lane, 

Colt  V.  Woollaston,  2  P.  Wms.  154  L.  E.  11  Eq.  215   (1870). 
(1723);   Evans  v.  Bicknell,  6  Ves.  Accident.    Atkinson  v.   Leonard, 

182  (1801);  Kemp  v.  Pryor,  7  Ves.  3   Brown's    Ch.    218;    Walmsley   v. 

237   (1802);   Burrowes  v.  Lock,  10  Child,   1  Ves.  Sr.  341;   Toulmin   v. 

Ves.  474  (1805);  Green  v.  Bassett,  Prince,    5    Ves.    235,    238    (1800); 

1  Sim.   45    (1826);   Blain  v.   Agar,  East  India  Co.  v.  Boddam,  9  Ves. 

2  Sim.    296    (1828);    Fitzgerald   v.  464   (1804). 

Stewart,  2  Sim.  342  (1828);  Hodg-  Mistake.     Landsdowu  v.  Lands- 
son  V.  Murray,  2  Sim.  517   (1829);  down,     2     Jacob     &     Walker,     205 
Blair  v.  Bromley,  5   Hare    (1846);  (1730);    Bingham    v.    Bingham,    1 
Wilson  V.  Short,  6  Hare  366  (1848);  Ves.  Sr.  126  (1748). 
Ingram  v.  Thorp,  7  Hare  67  (1848);  Account.    Charlisle  v.  Wilson,  13 
Hutton  V.  Rossiter,  7  De  G.  M.  &  Ves.  275,  276   (1807). 
S.  918   (1855);  Slim  v.  Croucher,  1  Contribution.      Eyre   v.    Everett, 
De  G.  F.  &  G.  518    (1860);   Wals-  2  Russ.  381  (1826). 
ham  V.  Stainton,  1  De  G.  J.  &  S.  Illegal     Contracts.       Collins     v. 
678   (1863);  Trail  v.  Baring,  4  De  Blantern,  2  Wils.  341  (1765);  Har- 
G.   J.   &   S.   318    (1864);    Atkinson  rington    v.    Du-Chatel,    1    Brown's 
V.    Mackreth,    L.    R.    2    Eq.    370  Ch.    124    (1782);    Bromley   v.   Hol- 
(1866);  Ramshire  v.  Bolton,  L.  R.  land,  7  Ves.  3  (1802). 


GENERAL  EQUITY  JURISDICTION  21 

in  which  both  legal  and  equitable  remedies  conld  be 
obtained,  as  the  case  might  demand,  thus  practically- 
doing  away  with  the  entire  jurisdictional  question  be- 
tween law  and  equity  so  far  as  the  plaintiff's  seeking  his 
remedy  in  the  one  or  the  other  was  concerned.  All  these 
decisions  hold  uniformly  that  equity  will  not  be  ousted 
of  any  of  its  ancient  and  original  jurisdiction  by  reason 
of  the  encroachments  of  courts  of  law,  but  that  the  juris- 
diction exists  concurrently  even  though  the  remedy  at 
law  be  plain  and  adequate,  with  one  exception,  namely, 
the  cancellation  of  wills  obtained  through  fraud.  In  the 
latter  case  in  a  very  few  early  decisions  the  court  of  chan- 
cery seems  to  have  asserted  such  a  jurisdiction,  but  for 
more  than  a  century  now  they  have  denied  it,  and  it  has 
been  finally  settled  by  a  tribunal  of  last  resort  that  courts 
of  general  equity  jurisdiction  have  no  such  poWer.^^  With 
this  exception  the  jurisdiction  has  been  held  to  exist  and 
has  been  exercised  by  the  English  courts,  though  the 
remedy  at  law  was  adequate  and  the  remedy  obtained  in 
equity  of  exactly  the  same  kind  as  that  given  at  law,  viz., 
a  money  recovery  or  damages.^^  The  great  majority  of 
the  English  cases  cited  above  on  this  subject  are  for  the 
recovery  of  a  definite,  specific  sum  of  money  paid  by  the 
plaintiff,  and  in  no  case  of  this  sort  have  the  courts 
refused  to  exercise  the  jurisdiction,  but  in  cases  seeking 
only  damages  proper  they  have  refused  to  exercise  it, 
and  the  final  doctrine  of  the  English  decisions  on  this 
point  seems  to  be  that  the  courts,  while  recognizing  the 
existence  of  the  concurrent  jurisdiction  of  equity  in  all 
matters  where  the  ancient  jurisdiction  has  been  en- 
croached upon  by  the  law,  nevertheless  reserve  the  right 
to  send  the  parties  to  their  remedy  at  law  in  particular 

31.  Pomeroy's    Eq.    Jurisp.    Sec.  32.  See,   for   damages,   Evans   v. 

913.     Langdon    v.    Blackburn,    109       Bicknell,  6  Ves.  174   (1801). 
Cal.    19,    41    P.    814     (1895).     See 
also    In    re    Broderick's    Will,    21 
Wall.  504,  22  L.  ed.  599  (1874). 


22  EQUITY  PRACTICE 

cases  where  an  assessment  of  damages  is  the  only  remedy 
sought,  or  where  for  any  reason  under  all  the  circum- 
stances of  the  case,  the  procedure  of  a  jury  trial  at  law 
would  be  more  convenient  and  appropriate.^^ 

§  24.  — American  doctrine — Law  and  equity  states.  We 
have  already  enumerated  the  states  ^^  that  have  adopted 
the  reformed  code  of  civil  procedure,  which  employs  only 
one  civil  action  under  which  principles  and  remedies  both 
legal  and  equitable  are  jointly  administered,  and  by 
which  all  question  of  the  dividing  line  between  law  and 
equity  procedure  and  the  exclusive  and  concurrent  juris- 
diction in  these  states  is  now  removed;  and  on  the  other 
hand  the  states  where  the  separate  forms  of  procedure 
by  action  at  law  and  bill  in  equity  are  retained.  It  is  in 
these  latter  states  that  the  subject  of  our  present  inquiry 
is  of  importance.  Formerly  some  of  these  states  pos- 
sessed only  a  limited  statutory  jurisdiction  in  equity,  but 
today,  since  the  statutes  ^^  conferring  full  equity  powers 
on  the  courts  of  these  last  mentioned  states,  it  may  be 
stated  as  a  general  proposition  that  all  the  law  and  equity 
states  now  possess  full  equity  powers  to  administer  equit- 
able principles  and  grant  equitable  remedies,  except  in 
the  matters  of  probate  and  administration.^^    A  careful 

33.  Clifford  v.  Brooks,  13  Ves.  granted  probate  courts  over  es- 
130,  131   (1806);  Newham  v.  May,       tates  of  deceased  persons  does  not 

13  Price's  Ex.  749  (1824);  Whit-  oust  the  chancery  court  of  its  origi- 
more  v.  Mackeson,  16  Beavan  126  nal  jurisdiction;  and  whenever  the 
(1852);  Hoare  v.  Bremridge,  L.  E.  power   of  the  probate  court  is  in- 

14  Eq.  522  (1872);  Ochsenbein  v.  adequate  and  complete  relief  can- 
Papelier,  L.  E.  8  Ch.  App.  675  not  be  granted  the  parties  in  inter- 
(1873).  est,  resort  may  be  had  to  chancery. 

34.  See   §  11,  ante,  p.  6.  Eensford  v.  Magnus  &  Co.,  150  Ala. 

35.  Maine,  Chap.  175,  Laws  of  288  (1907);  McNeil  v.  McNeil,  36 
1874;  Massachusetts,  Chap.  178,  Ala.  109  (1860);  Sellers  v.  Sellers, 
Laws  of  1877;  Pennsylvania,  Act  35  Ala.  235  (1859);  Stewart  v. 
of  June   16,   1836    (P.   L.   784,   No.  Stewart,  31  Ala.  207   (1857). 

13;    P.    &    L.    Dig.    709);    Central  Such  cases  may  be  removed  from 

Iron  Works  v.  Penn.  Eailroad  Co.,  the  probate  court  to  the  chancery 

17  Pa.  C.  C.  651   (1895).  court  even  after  the  probate  court 

36.  In  Alabama  the  jurisdiction  has  taken  jurisdiction  for  final  set- 


GENERAL  EQUITY  JURISDICTION 


23 


examination  of  the  authorities  in  each  state  of  the  law 


tlement,  upon  allegation  and  proof 
of  some  special  equity.  Rensford 
V.  Magnus  &  Co.,  150  Ala.  288 
(1907);  Greenhood  v.  Greenhood, 
143  Ala.  440  (1905). 

An  allegation  setting  out  the 
necessity  of  a  discovery  from  the 
administrator  relative  to  dece- 
dent 's  property  is  sufficient  to  war- 
rant the  removal  of  the  estate 
from  the  probate  to  the  chancery 
court,  although  the  administrator 
had  filed  accounts  for  a  settlement 
and  the  time  for  hearing  the  same 
had  been  fixed.  Townsend  v.  Miles, 
167  Ala.  514  (1910). 

But  a  judgment  creditor  of  a 
decedent  cannot  file  a  petition  in 
chancery  for  the  sale  of  personal 
property  belonging  to  the  estate, 
his  remedy  is  at  law  upon  his  ex- 
ecution. If,  however,  the  adminis- 
trator joins  with  the  judgment 
creditor,  the  petition  will  not  be 
dismissed  for  lack  of  creditor's 
capacity  so  to  petition.  Howell  v. 
Randel,  171  Ala.  451  (1911). 

An  heir  or  devisee  of  an  estate 
may,  at  any  time  before  the  pro- 
bate court  has  entered  upon  final 
settlement  thereof,  file  a  bill  to  re- 
move the  cause  from  the  probate 
to  the  chancery  court  without  al- 
leging any  other  or  special  grounds 
of  equity  jurisdiction.  Hardwick 
V.  Hardwick,  164  Ala.  390  (1909). 
But  the  administrator  or  executor 
of  an  estate  must  allege  some  spe- 
cial equity  in  order  to  remov^e  the 
cause  to  the  chancery  court.  Noble 
v.  Tate,  119  Ala.  399  (1898);  Sto- 
vall  V.  Clay,  108  Ala.  105  (1895). 

If  the  same  person  is  administra- 
tor or  executor  of  two  estates 
standing  in  relation  of  debtor  and 
creditor,  the  chancery  court  has  ex- 


clusive jurisdiction  of  final  settle- 
ment. Eastman  v.  Eastman,  82 
Ala.  223   (1886). 

In  Florida,  Mississippi,  New  Jer- 
sey, Rhode  Island  and  Virginia, 
equity  jurisdiction  in  matters  of 
administration  is  held  to  be  con- 
current with  and  unimpaired  by 
jurisdiction  of  probate  courts  over 
such  matters.  Deans  v.  Wilcoxon, 
25  Fla.  980  (1889);  Walker  v. 
State,  53  Miss.  532  (1876);  Frey  v. 
Demarest,  16  N.  J.  Eq.  236  (1863); 
Blake  v.  Butler,  10  R.  I.  133  (1872) ; 
Nelson  v.  Cornwall,  11  Gratt.  (Va.) 
724  (1854). 

In  Tennessee,  by  statute  the 
chancery  court  has  concurrent  ju- 
risdiction with  courts  of  probate  in 
certain  cases.  See  Code,  Sees.  3943- 
3953,  4047-4053,  6111-6114.  See 
Bruce  v.  Bruce,  11  Heisk.  760 
(1872);  Burgner  v.  Burgner,  11 
Heisk.  729  (1872) ;  Todd  v.  Wright, 
12  Heisk.  442  (1873);  Evans  v. 
Evans,  2  Coldw.  143  (1865),  and 
Murgitroyde  v.  Cleary,  16  Lea  530 
(1886),  for  decisions  under  these 
sections. 

In  Michigan,  the  statute  coufor- 
ring  probate  jurisdiction  expressly 
provides  that  such  jurisdiction 
shall  not  deprive  the  chancery 
court  of  concurrent  jurisdiction  in 
such  matters  as  originally  exer- 
cised over  the  same.  How.  Ann. 
St.  (2d  ed.).  Sec.  12099;  Comp. 
Laws  (1897),  Sec.  651.  See  Tud- 
hope  V.  Potts,  91  Mich.  490  (1892). 
But  see  Kellogg  v.  Aldrich,  39 
Mich.  576  (1878),  where  the  court 
seems  to  have  refused  to  take 
jurisdiction. 

In  Illinois,  Maryland  and  Ver- 
mont the  jurisdiction  of  equity 
over  matters  of  probate  and  admin- 


24 


EQUITY  PRACTICE 


istration   is   held  to  be   corrective, 
supplemental  or  auxiliary  and  not 
concurrent  with  courts  of  probate. 
Illinois.     See  Strauss  v.  Phillips, 
189  III.  9   (1901),  affirming  91   111. 
App.  373  (1899);  Goodman  v.  Kop- 
perl,  169  111.  136   (1897),  affirming 
67   lU.    App.   42    (1896);    Duval   v. 
Duval,  153  111.  49  (1894),  affirming 
49  111.  App.  469  (1893);  Shepard  v. 
Speer,  140  111.  238  (1892),  affirming 
41  111.  App.  211   (1891). 
.  Maryland.     Baltimore    Safe    De- 
posit,  etc.,   Co.   v.   Baker,   91    Md. 
297    (1900);   Macgill   v.   Hyatt,   80 
Md.  253  (1894);  Alexander  v.  Lea- 
kin,  72  Md.  199   (1890);  Alexander 
v.  Stewart,  8  Gill  &  J.   (Md.)   226 
(1836);     Hewitt's    Case,    3    Bland 
(Md.)   184  (1831). 

Vermont.  Bethel  School  Dist.  v. 
Sheldon,  71  Vt.  95  (1898);  Protes- 
tant, etc.,  Soc.  V.  Eells,  68  Vt. 
497,  54  Am.  St.  Rep.  888  (1896); 
Davis  v.  Eastman,  66  Vt.  651 
(1894);  Blair  v.  Johnson,  64  Vt. 
598  (1892);  Adams  v.  Adams,  22 
Vt.  50  (1849). 

In  these  three  states  just  men- 
tioned the  probate  courts  have 
ample  powers  to  do  complete  jus- 
tice in  all  ordinary  cases,  and  the 
chancery  court  will  not  take  juris- 
diction unless  the  case  shows  somo 
special  equitable  feature  requiring 
relief  not  obtainable  in  the  pro- 
bate courts,  or  facts  are  alleged 
or  reasons  given  showing  that  com- 
plete justice  cannot  be  obtained 
in  such  courts.  See  cases  above 
cited  and  Bellows  v.  Sowles,  57  Vt. 
411    (1SS5). 

In  Maine,  Massachusetts,  New 
Hampshire  and  Pennsylvania  the 
concurrent  chancery  jurisdiction 
over  matters  of  probate  and  admin- 
istration is  either  denied  absolute- 
ly,  or  its   exercise  practically   sus- 


pended, in  all  matters  specified  by 
statute  as  within  the  probate  juris- 
diction,    except     those     involving 
some      special      equitable      feature 
which  alone  would  have  constituted 
ground  for  jurisdiction  in  chancery. 
Maine.     Hawes   v.   Williams,   92 
Me.   492    (1899);    Caleb   v.   Hearn, 
72  Me.  231  (1881).     On  appeal  the 
jurisdiction    over   these   matters   is 
entirely  concurrent,  as  the  supreme 
court,   which   is   in   Maine   both   a 
court    of    law    and    equity,    is    ex- 
pressly   made    by    statute    the    su- 
preme  court   of  probate.     See  Ela 
v.    Ela,    84    Me.    423    (1892).      By 
statute  the  chancery  court  is   also 
given  jurisdiction  over  all  disputes 
arising    between    co-executors    and 
co-administrators    where    there    is 
not  a  plain,  adequate  and  complete 
remedy  at  law.     E.  S.  1903,  Chap. 
66,  Sec.  67. 

Massachusetts.  Wilson  v.  Leish- 
man,  12  Met.  316  (1847);  Jenison 
v.  Hapgood,  7  Pick.  1,  19  Am.  Dec. 
258  (1828).  The  chancery  court 
does  not  have  jurisdiction,  even 
when  an  account  has  been  settled 
in  the  probate  court  without  no- 
tice to  the  parties  interested.  Sever 
V.  Russell,  4  Cush.  513,  50  Am.  Dec. 
811  (1849).  For  later  cases  deny- 
ing chancery  jurisdiction,  see 
Greene  v.  Brown,  180  Mass.  308 
(1902);  Green  v.  GaskiU,  175  Mass. 
265  (1900);  Ammidown  v.  Kinsey, 
144  Mass.  587  (1887);  Foster  v. 
Foster,  134  Mass.  120  (1883).  But 
see  Nathan  v.  Xathan,  166  Mass. 
294   (1S96). 

New  Hampshire.  Joslin  v. 
Wheeler,  62  X.  H.  169  (1882);  Wal- 
ker V.  Cheever,  35  X.  H.  3.39  (1857). 
Pennsylvania.  Henderson  v. 
Stryker.  164  Pa.  St.  170  (1894); 
Hamilton  v.  Clarion,  etc.,  R.  Co., 
144   Pa.    St.    34,    13    L.    E.    A.    779 


GENERAL  EQUITY  JURISDICTION 


25 


and  equity  class,  which  are  collected  in  the  note  below,^^ 
shows  that  the  courts  of  every  state  (except  Delaware  and 
Rhode  Island,  where  the  question  does  not  seem  to  have 
been  considered),  uniformly  follow  the  doctrine  laid 
down  by  the  English  cases  as  stated  above,  viz.:  that 
equity  will  not  be  deprived  by  the  law  of  any  of  its  ancient 


(1891);  Miskimins'  Appeal,  114  Pa. 
St.  530  (1886);  Whiteside  v.  White- 
side, 8  Harris  473   (1853). 

In  Pennsylvania  and  New  Hamp- 
shire the  chancery  court  will  take 
jurisdiction  only  when  the  probate 
courts,  by  reason  of  their  not  pos- 
sessing full  equity  powers,  cannot 
afford  complete  relief.  See  cases 
cited  above  and  Hayes  v.  Hayes, 
48  N.  H.  219   (1868). 

37.  Alabama.  Evans  v.  Wilhite, 
167  Ala.  587  (1910),  to  vacate  judg- 
ment; Crass  V.  Memphis  &  C.  R. 
Co.,  96  Ala.  447  (1892),  lien;  Gould 
V.  Hayes,  19  Ala.  438  (1851),  ad- 
ministration. 

Florida.  Deans  v.  Wilcoxon,  25 
Fla.  980  (1889),  administration; 
Thrasher  v.  Doig,  18  Fla.  809 
(1882),  lien. 

Illinois.  Chicago,  etc.,  R.  R.  Co. 
v.  Hay,  119  111.  493  (1887),  mis- 
take, judgment;  Douglass  v.  Hart- 
zell,  15  111.  App.  251  (1884);  Laba- 
die  V.  Hewitt,  85  111.  343  (1877), 
partition;  Hacker  v.  Barton,  84  111. 
313  (1876);  Marlow  v.  Marlow,  77 
111.  633  (1875),  fraud,  money  re- 
covery; Wing  et  al.  v.  Sherrer,  77 
111.  (1875),  leading  case,  removal 
of  cloud,  fraud;  Derrick  v.  Lamar 
Ins.  Co.,  74  111.  404  (1874),  ins. 
policy  cancelled,  fraud;  Jones  v. 
Neely,  72  111.  449  (1874),  cancella- 
tion, fraud;  Patton  v.  Campbell,  70 
111.  72  (1873),  accident;  Babeoek  v. 
McCamant,  53  111.  214  (1870),  judg- 


ment, fraud;  Hess  v.  Jose,  52  111. 
476  (1869),  partition;  Norton  v. 
Hixon,  25  111.  371  (1861),  official 
trust;  Kennedy  v.  Northup,  15  111. 
154  (1853),  fraud;  Nelson  v.  Rock- 
well, 14  111.  376  (1853),  judgment, 
fraud;  Truett  v.  Wainwright,  4  Gil- 
man,  418  (1847),  fraud,  setting 
aside  judgment. 

Maine.  Nash  v.  Simpson,  78  Me. 
142  (1886),  partition;  Merrill  v. 
McLaughlin,  75  Me.  64  (1883), 
fraud;  Taylor  v.  Taylor,  74  Me. 
582  (1883),  fraud,  money  recovery. 

Maryland.  Gough  v.  Pratt,  9 
Md.  526  (1856),  judgment,  illegal 
contract;  Clayton  v.  Carey,  4  Md. 
26  (1853);  Taymon  v.  Mitchell, 
et  al.,  1  Md.  Ch.  399  (1849),  fraud, 
avoidance  of  sales,  personal  prop- 
erty; Barnes  v.  Grain,  8  Gill.  398 
(1849),   administration. 

Massachusetts.  Nathan        v. 

Nathan,  166  Mass.  294  (1896), 
setting   aside   contract,   fraud. 

Michigan.  Cogwells  v.  Mitts, 
90  Mich.  353  (1892),  cancellation, 
fraud;  Petrie  v.  Torrent,  88  Mich. 
43  (1891),  account;  Tompkins  v. 
Holister,  60  Mich.  470  (1886),  ac- 
count and  fraud;  Wyckoff  v.  Vic- 
tor Sewing  Machine  Co.,  43  Mich. 
309  (1880),  injunction  of  action, 
avoidance  of  contract,  fraud; 
Wright  v.  Hope,  38  Mich.  525, 
(1878),   injunction,   fraud. 

Mississippi.  Webster  v.  Skep- 
with,  26  Miss.  341  (1853),  mis- 
take,     judgment;      Humphries      v- 


26 


EQUITY  PRACTICE 


heads  of  jurisdiction,  and  that  this  jurisdiction  will  be 
exercised  concurrently,  even  though  the  remedy  at  law 
be  adequate  and  of  the  same  kind,  as  in  partition,  account 
and  contribution,  and  even  for  money  recovery  of  a  spe- 
cific sum  paid,  as  in  cases  of  trusts,  fraud  (with  the  single 
exception  under  this  head  of  the  cancellation  of  wills 
obtained  by  fraud),  or  mistake;  but  that  the  courts  will 


Bertee,    10    S.    &    M.    282    (1848), 
void   judgment. 

New  Hampshire.  Alden  v.  Gib- 
son, 63  N.  H.  12  (1883),  creditors' 
bill;  Heath  v.  Banks,  44  N.  H. 
177  (1862),  contribution,  sureties; 
Walker  v.  Cheever,  35  N.  H.  345 
(1857),  contribution  on  note;  Wells 
V.  Pierce,  27  N.  H.  512  (1853), 
owner  allowed  property  to  be  sold 
without  interference,  injunction 
sought. 

New  Jersey.  Sweeny  v.  Wil- 
liams, 9  Stew.  627  (1883)  con- 
tribution; Force  v..  City  of  Eliza 
beth,  27  N.  J.  Eq.  408  (1876),  ac- 
cident; Loan  Asso.  v.  Lyon,  2 
Stew.  Ill  (1870),  trust,  money 
had  and  received;  Irick  v.  Black, 
17  N.  J.  Eq.  198  (1864),  contribu- 
tion; Hartshorne  v.  Hartshorne,  1 
Green's  (N.  J.)  Ch.  335  (1840), 
dower  and  partition;  Boulton  v. 
Scott's  Adms.,  3  N.  J.  Eq.  231 
(1835),  setting  aside  judgment, 
fraud;  Crene  v.  Couklin,  1  N.  J. 
Eq.  352  (1831),  ejectment  might 
have  been  had  at  law,  concurrent 
in  equity;  Moore  v.  Gamble,  9  N. 
J.  Eq.  246  (1852),  setting  aside 
judgment,    fraud    (semble    contra). 

Pennsylvania.  Kirkpatrick  v. 
McDonald,  11  Pa.  St.  387,  392 
(1849),  fund  impressed  with  trust; 
Wesley  Ch.  v.  Moore,  10  Penn. 
274  (1849),  encroachments  of  law 
do    not    oust   equity. 

Tennessee.    McLin  et  al.  v.  Mar- 


shall, 1  Heisk.  678  (1870),  duress; 
Porter  v.  Jones,  6  Cold.  313  (1869), 
relief  on  void  instrument;  Maise 
v.  Garner,  M.  &  Y.  (Tenn.)  382 
(1828),  relief  from  void  instru- 
ment. 

Vermont.  Glastenbury  v.  Mc- 
Donald, 44  Vt.  450  (1872),  can- 
cellation of  an  order,  fraud;  Viele 
v.  Hoag,  24  Vt.  46  (1851),  contribu- 
tion. 

Virginia.  Shirkey  v.  Kirby,  110 
Va.  455  (1909),  trust;  Kelly  v. 
Lehigh  Min.  &  Mfg.  Co.,  98  Va. 
405,  81  Am.  St.  Eep.  736  (1900), 
specific  performance;  Meek  v. 
Spracher,  87  Va.  169  (1890),  fraud, 
compensation,  leading  case  over- 
ruling previous  cases;  Holland  v. 
Trotter,  22  Gratt.  136  (1872), 
judgment,  fraud;  Shields  v.  Cum- 
mings,  4  Eand.  541  (1820),  acci- 
dent. 

West  Virginia.  Harvey  v.  Ryan, 
59  W.  Va.  134,  7  L.  R.  A.  U5 
(1906),  injunction;  Lyttle  v.  Cozad, 

21  W.  Va.  183  (1882),  accident; 
Mitchell  v.  Chancellor,  14  W.  Va. 

22  (1878);  Hickman  v.  Painter, 
11   W.  Va.  386   (1877). 

United  States.  American  Assn. 
V.  Williams,  166  Fed.  17,  93  C.  C. 
A.  1  (1908);  Peck  v.  Ayers  Lord 
Tie  Co.,  116  Fed.  273  (1902); 
Sowles  V.  First  Nat.  Bank,  100 
Fed.  552  (1900);  McConihay  v. 
Wright,  121  U.  S.  201,  30  L.  ed. 
932   (1886). 


GENERAL  EQUITY  JURISDICTION  27 

not,  as  a  rule,  exercise  the  jurisdiction  in  cases  where  an 
assessment  of  damages  is  the  sole  remedy  sought,  or 
where  owing  to  conflicting  evidence  or  any  like  reason, 
the  cause  is  more  convenient  and  appropriate  for  a  jury 
trial. 

§  25.  Equity  jurisdiction  of  the  Federal  courts.  Under 
the  constitution  of  the  United  States  and  by  the  acts  of 
Congress,  the  Supreme  Court  has  been  granted  broad 
equitable  jurisdiction,  and  its  equity  powers  are  held  to 
be  co-extensive  with  the  jurisdiction  of  the  English  High 
Court  of  Chancery.^^ 

This  equitable  jurisdiction  of  our  Federal  courts  exists 
uniformly  and  to  its  full  extent  throughout  all  the  states 
of  the  Union,  unmodified  and  unlimited  by  state  legisla- 
tion; but  as  the  primary  titles  and  rights  to  which  this 
Federal  jurisdiction  attaches  are  often  created  entirely 
by  the  laws  of  the  states,  any  variation  or  enlargement 
of  the  state  law  in  this  regard  would  thus  necessarily 
extend  the  jurisdiction  of  the  Federal  courts.^^ 

Matters  of  administration,  which  it  has  been  seen  have 
in  many  states  been  taken  entirely  away  from  equity  and 
given  to  courts  of  probate,  are  nevertheless  held  to  be 
within  the  equity  jurisdiction  of  the  Federal  courts  in 
proper  cases.'^'^ 

38.  Pennsylvania  v.  Wheeling  Nat.  Bank,  156  U.  S.  485,  493 
Bridge  Co.,  13  How.  (U.  S.)  518  (1895);  Scott  v.  Neeley,  140  U.  S. 
(1851);  Smith  v.  Burnham,  Fed.  106,  109,  35  L,  ed.  358  (1891); 
Cas.    No.    13,018    (1837).  Wells,  Fargo  Co.  v.  Miner,  25  Fed. 

39.  U.  S.  Shipbuilding  Co.  v.  533  (1885);  Eeynolds  v.  Craw- 
Conklin,  126  Fed.  132,  60  C.  C.  A.  fordsville  Bank,  112  U.  S.  410 
680  (1903);  Jones  v.  Mutual  Fi-  (1884);  Cummings  v.  Nat.  Bank, 
delity  Co.,  123  Fed.  506  (1903);  101  U.  S.  157,  25  L.  ed.  901 
Lander  v.  Mercantile  Nat.  Bank,  (1879);  Davis  v.  Gray,  16  Wall. 
118  Fed.  785,  791,  55  C.  C.  A.  523  (U.  S.)  203,  221,  21  L.  ed.  447 
n902);  Missouri  K.  &  T.  Co.  v,  (1872);  Ex  parte  McNiel,  13  Wall. 
Kiminseig,  172  U.  S.  359,  361,  af-  (U.  S.)  236,  243,  20  L.  ed.  624 
firming  77  Fed.  41,  40  U.  S.  App.  (1871). 

620    (1898);    Cowley    v.    N.    P.    E.  40.  Newberry   v.   Wilkinson,   199 

E.  Co.,  159  U.  S.  569,  582,  40  L.  Fed.  673  (1912),  Sawyer  v.  White, 
ed.    263    (1895);    Lindsay   v.   First       122  Fed.  223   (1903).     See  note  to 


28  EQUITY  PRACTICE 

§  26.  Concurrent  equity  jurisdiction  of  the  Federal 
courts.  The  couciirrent  equity  jurisdiction  of  the  Federal 
courts  in  cases  where  there  is  an  adequate  remedy  at  law 
has  been  limited  to  a  great  extent  by  the  narrow  interpre- 
tation given  to  the  clause  in  the  Judiciary  Act  of  1789 
defining  the  jurisdiction  of  such  courts,  when  construed 
in  connection  with  the  seventh  amendment  of  the  consti- 
tution preserving  the  right  to  trial  by  jury  in  certain 
cases.  The  first  national  congress,  by  the  Judiciaiy  Act 
of  1789,  established  the  courts  of  the  United  States  and 
defined  their  jurisdiction.  It  enacted  that  "suits  in 
equity  shall  not  be  sustained  in  either  of  the  courts  of  the 
United  States,  in  any  case  where  plain,  adequate  and  com- 
plete remedy  may  be  had  at  law."  ^^  Five  days  later  on 
September  29,  1789,  the  same  congress  proposed  to  the 
legislatures  of  the  several  states  the  article  afterwards 
ratified  as  the  seventh  amendment  of  the  constitution, 
which  declares  that  "in  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the 
right  of  a  trial  by  jury  shall  be  preserved." 

§  27.  — Interpretation  of  the  Supreme  Court.  As  a  new 
proposition  there  would  seem  to  be  no  reason  whatever 
why  this  provision  of  the  constitution  should  be  constmed 
as  preserving  the  right  of  trial  by  jury  in  any  cases  except 
those  expressly  indicated,  namely,  actual  suits  at  common 
law.  This  would  have  secured  the  right  in  all  cases  where 
it  had  existed  up  to  that  time.  Xevertheless  these  words 
"in  suits  at  common  law"  are  interpreted  by  the  Supreme 
Court  to  mean  all  legal  rights  remediable  at  common 
law.-'- 

Further.  although  the  Judiciary  Act,  which  states  that 
suits  in  equity  shall  not  be  maintained  in  either  of  the 
courts  of  the  United  States  in  any  case  where  there  is  a 

Bedford   Quarries   Co.   v.   Thomlin-  42.  Root  v.  Eailwar  Co.,  105  U. 

son,  36  C.  C.  A.  276  (1889).  S.  207   (ISSl);  Fenn  v.  Holme,  21 

41.  Act  of  Sept.  24,  17S9,  Ch.  20,  How.  4S1   (1858);   Parsons  v.  Bed- 

§  11,  Rev.  Stat.  §  723.  ford,  3  Pet.  433   (1830). 


GENERAL  EQUITY  JURISDICTION  29 

plain,  adequate  and  complete  remedy  at  law,  has  been 
held  to  be  declaratory  only  of  the  principles  of  general 
equity  jurisprudence,  and  not  intended  to  abridge  the 
jurisdiction  of  the  court  as  one  of  full  equity  powers; 
nevertheless  this  act  in  connection  with  the  constitutional 
provisions  as  to  trial  by  jury  was  construed  as  follows  in 
the  leading  case  of  Hipp  v.  Babin,  19  Howard  (U.  S.)  271, 
278,  (1856):  ''wherever  a  court  of  law  is  competent  to 
take  cognizance  of  a  right,  and  has  power  to  proceed  to  a 
judgment  which  affords  a  plain,  adequate  and  complete 
remedy  without  the  aid  of  a  court  of  equity,  the  plaintiff 
must  proceed  at  law,  because  the  defendant  has  a  consti- 
tutional right  to  a  trial  by  a  jury."  This  interpretation 
of  the  effect  of  these  provisions  has  been  followed,  cited 
and  quoted  by  a  long  line  of  decisions  ^^  down  to  the  pres- 
ent time,  and  the  jurisdiction  refused  in  cases  where  the 
English  courts  exercised  concurrent  jurisdiction,  even 
though  the  remedy  at  law  is  adequate;  and  the  final  basis 
of  nearly  all  of  these  decisions  is  the  abridgment  of  the 
constitutional  right  to  a  trial  by  jury. 

§  28.  — Conclusion.  The  equity  jurisdiction  of  the 
United  States  Supreme  Court  has  not  therefore  been 
equal  to  that  of  courts  of  general  equity  jurisdiction,** 

43.  Scott  V.  Neely,  340  U.  S.  109  (1886);  and  Grand  Chute  v.  Wine- 
(1890);  Whitehead  v.  Shattuck,  gar,  15  Wall.  374  (1872).  In  Vose 
138  U.  S.  151  (1890);  Buzard  v.  v.  Philbrook,  3  Story  335,  F.  C. 
Houston,  119  U.  S.  347-351  (1886);  No.  17,010  (1844),  and  Ins.  Co.  v. 
Killian  v.  Ebbinghaus,  110  U.  S.  Bailey,  13  Wall.  616,  620,  the 
568,  573  (1883);  Boot  v.  Eailway  court  refused  to  cancel  an  insur- 
Co.,  105  U.  S.  189,  212  (1881);  ance  policy  and  to  enjoin  an  action 
Grand  Chute  v.  Winegar,  15  Wall.  at  law  thereon  on  the  ground  of 
374  (1872);  Oelrichs  v.  Spain,  15  false  representation  in  procuring 
Wall;  228  (1872);  Insurance  Co.  it,  since  it  would  abridge  the  right 
V.  Bailey,  13  Wall.  616,  620  (1871);  of  trial  by  jury.  For  cases  of 
Thompson  v.  R.  R.  Co.,  6  Wall.  money  recoveries  where  jurisdic- 
137  (1867);  Wright  v.  Ellison,  1  tion  was  refused,  see  also  Paton 
Wall.  22   (1863).  v.  Majors,  46  Fed.  210  (1891),  mis- 

44.  For  •  cases  where  courts  of  take,  money  had  and  received; 
general  equity  jurisdiction  might  Littlefield  v.  Ballou,  114  U.  S.  190 
have  exercised  jurisdiction,  see  (1884);  Ambler  v.  Choteau,  107 
Buzard  v.  Houston,   119  U.  S.   347  U.   S.   586    (1882). 


30 


EQUITY  PRACTICE 


since  by  its  interpretation  of  tlie  constitutional  amend- 
ment preserving-  the  right  of  trial  by  jury  '*in  suits  at 
common  law,"  as  guaranteeing  trial  by  jury  in  all  cases 
involving  legal  rights  which  can  be  adequately  remedied 
at  law,  it  has  hitherto  shorn  itself  of  a  large  field  of 
concurrent  jurisdiction  recognized  and  exercised  by  the 
English  High  Court  of  Cliancery  and  courts  of  the  dif- 
ferent states  of  the  Union  possessing  equal  powers.'*^ 

§  29.  Concurrent  jurisdiction  continued — Right  to  trial 
by  jury.  The  constitutional  guaranty  of  the  right  to  a 
trial  by  jury,  contained  in  the  several  constitutions  or 
bills  of  rights  of  the  law  and  equity  states,  does  not 
abridge   the   original    concurrent   jurisdiction    of   their 


45.  It  is  now  provided  by  Eule 
23  of  the  new  equity  rules  pro- 
mulgated by  the  Supreme  Court 
of  the  United  Stales,  as  follows: 
"If  in  a  suit  in  equity  a  matter 
ordinarily  determinable  at  law 
arises,  such  matters  shall  be  de- 
termined in  that  suit  according 
to  the  principles  applicable,  with- 
out sending  the  case  or  question 
to  the  law  side  of  the  court." 
The  question  therefore  arises  as 
to  the  effect  that  this  rule  was  in- 
tended to  have  and  will  have  in 
extending  the  concurrent  jurisdic- 
tion of  equity  in  the  Federal 
courts,  or  in  restoring  it  to  the 
extent  of  that  possessed  by  the 
English  High  Court  of  Chancery. 
While  it  is  true  that  the  Supreme 
Court  by  its  previous  decisions, 
such  as  Hipp  v.  Babin,  19  How- 
ard (U.  S.)  271  (1856),  and  other 
cases  cited  in  note  43,  ante,  de- 
clares that  a  plaintiff  must  pro- 
ceed at  law  whenever  a  court  of 
law  is  competent  to  consider  a 
right  and  affords  a  plain  and  ade- 
quate remedy,  because  of  the  con- 
stitutional   guaranty    of    right    to 


trial  by  jury,  nevertheless  as 
stated  in  §  27,  ante,  p.  28,  as  a  new 
proposition,  there  is  no  reason  why 
the  constitution  should  be  con- 
strued as  preserving  the  right  of 
trial  by  jury  in  any  cases  except 
those  expressly  included  by  the 
words  of  the  seventh  amendment, 
viz.:  "In  suits  at  common  law," 
thus  securing  the  right  in  all  cases 
where  it  had  existed  up  to  that 
time.  It  is  entirely  competent 
therefore  for  the  Supreme  Court 
to  reverse  itself  as  to  this  con- 
struction, either  by  a  more  recent 
decision,  or  still  more  formally 
and  effectually  by  the  promulga- 
tion of  new  equity  rules;  since 
the  Supreme  Court  is  given  by  the 
constitution  power  to  make  rules 
for  its  own  guidance,  and  these 
when  made  supersede  and  control 
its  previous  decisions.  See  United 
States  V.  Barber  Lumber  Co.,  167 
Fed.  184   (1908). 

This  reversal  of  its  former  at- 
titude as  to  the  consideration  of 
legal  rights  purely  remedial  at  law 
is  apparently  what  the  Supreme 
Court   has   intended   to   accomplish 


GENERAL  EQUITY  JURISDICTION 


31 


courts  of  equity.  The  courts  of  these  states  have  univer- 
sally held  that  this  guaranty  of  a  jury  trial  is  confined  to 
legal  rights  remediable  only  at  common  law,  and  does  not 
apply  to  suits  over  which  equity  exercised  jurisdiction 
prior  to  or  at  the  time  such  guaranties  were  adopted.^^ 


by  its  new  rule  23,  if  it  means 
what  it  says.  Such  at  any  rate 
must  be  the  practical  effect  of  it. 
"A  matter  ordinarily  determinable 
at  law"  must  necessarily  involve 
legal  rights  wherein  the  law  has 
heretofore  afforded  an  adequate 
remedy.  Such  rights  are  now  by 
this  rule  wholly  determinable  and 
necessarily  therefore  remediable 
on  the'  equity  side  of  the  Federal 
courts,  since  equity  having  juris- 
diction of  a  matter  will  always  do 
complete  justice  between  the  par- 
ties, even  if  it  involves  the  appli- 
cation of  purely  legal  remedies. 

46.  Alabama.  Eichards        v. 

Daugherty,  133  Ala.  569  (1902); 
Alexander  v.  Alexander,  5  Ala.  517 
(1843). 

Florida.  Camp  Phosphate  Co.  v, 
Anderson,  48  Fla.  226,  111  Am.  St. 
Eep.  77  (1904);  Hathorne  v.  Pan- 
ama Park  Co.,  44  Fla.  194,  103 
Am.  St.  Eep.  138   (1902). 

Illinois.  Pike  v.  Pike,  112  111. 
App.  243  (1904);  Gilman  v.  Bald- 
win, 96  111.  App.  323  (1901);  Bar- 
clay v.  Barclay,  184  111.  471  (1900); 
Harding  v.  Donlan,  141  111.  308 
(1891);  Chicago  Mut.  Life  Ins. 
Indemnity  Assn.  v.  Hunt,  127  111. 
257,  2  L.  E.  A.  549  (1889);  South 
Park  Comrs.  v.  Phillips,  27  111. 
App.  (1888);  Flaherty  v.  McCor- 
mick,  113  111.  538  (1885);  Heacock 
v.  Hosmer,  109  111.  245  (1884); 
Heacock  v.  Lubuke,  107  111.  396 
(1883);  Ward  v.  Farwell,  97  111. 
593    (1881). 


Maine.     Coffin  v.  Coffin,  55  Me. 

361    (1868). 

Maryland.  Capron  v.  Devries, 
83  Md.  220  (1896);  Stewart  v. 
Iglehart,  7  Gill.  &  J.  (Md.)  132, 
28   Am.   Dec.   202    (1835). 

Massachusetts.  Shapira        v. 

D'Arcy,  180  Mass.  377  (1902); 
Parker  v.  Simpson,  180  Mass.  377 
(1902);  Crocker  v.  Cotting,  173 
Mass.  68  (1899);  Merchant's  Nat. 
Bank  v.  Moulton,  143  Mass.  543 
(1887);  Eoss  v.  N.  E.  Mut.  Ins. 
Co.  120  Mass.  113  (1876);  Charles 
Eiver  Bridge  v.  Warren  Bridge, 
6  Pick.  376   (1828). 

Michigan.  Ehodes  v.  Mc- 
Xamara,  135  Mich.  644,  10  Detroit 
Leg.  N.  915  (1904);  In  re  Wayne 
County  Taxes,  54  Mich.  417 
(1885);  State  v.  Iron  Cliffs  Co., 
54   Mich.   350    (1884). 

New  Hampshire.  Curtice  v. 
Dixon,  73  N.  H.  393  (1905);  State 
v.  Saunders,  66  N.  H.  39,  18  L.  E. 
A.  646  (1889);  Bellows  v.  Bellows, 
58  N.  H.  60   (1876). 

New  Jersey.  Schmid  v.  Lisiew- 
ski,  53  N.  J.  Eq.  670   (1895). 

Pennsylvania.  Commonwealth 
V.  Andrews,  24  Pa.  Super.  Ct.  571 
(1904);  City  of  New  Castle  v. 
Eaney,  6  Pa.  Co.  Ct.  E.  87  (1888); 
Wishart  v.  Newell,  4  Pa.  Co.  Ct. 
E.  141  (1887);  Genet  v.  Delaware 
H.  Canal  Co.,  6  Luz.  Leg.  Eec.  73 
(1877);  Frank's  Appeal,  59  Pa.  190 
(1868);  North  Penn.  Coal  Co.  v. 
Snowden,  42  Pa.  488,  82  Am.  Dec. 
530   (1862). 


32  EQUITY  PRACTICE 

But  wherever  equity  jurisdiction  lias  been  extended  by 
special  statute,  since  the  adoption  of  such  constitutional 
guaranties,  to  subject  matters  cognizable  at  common  law 
and  not  within  the  field  of  general  equity  powers,  the 
right  of  trial  by  jury  still  obtains  in  such  cases,  and  par- 
ties will  be  sent  to  their  action  at  law  for  such  trial,^^  or 
else  an  issue  will  be  framed  for  a  jury  in  the  equity  suit.^^ 
But  whether  the  parties  are  sent  to  law  or  an  issue 
framed  for  the  jury  in  equity,  in  either  event  the  guaranty 
of  the  right  to  trial  by  jury  in  these  special  instances  does 
not  curtail  the  concurrent  jurisdiction  of  a  state  court  of 
equity,  as  has  been  held  in  the  Federal  courts,  since  such 
special  instances  are  not  within  the  limits  of  general 
equity  jurisdiction,  but  are  recent  statutory  extensions 
of  equitable  powers.  Inasmuch  as  the  seventh  amend- 
ment to  the  constitution  of  the  United  States  containing 
the  provision  above  considered  preserving  the  right  of 
trial  by  jury  in  suits  at  common  law,  has  been  uniformly 

Tennessee.     Cooper  v.  Stockard,  680  (1886);  Thompson  v.  Kailroad 

84  Tenn.   140    (1885).  Companies,  73  U.  S.  (6  Wall.)   134, 

Vermont.      State   v.   Murphy,   71  18    L.    ed.    765    (1867);    Shields    v. 

Vt.   127    (1898).  Thomas,  59   U.   S.    (18   How.)    253, 

Virginia.      N.    Y.    Life    Ins.    Co.  15   L.   ed.   368    (1855);   Parsons   v. 

V.   Davis,  94  Va.  427    (1897);   Pil-  Bedford,  28  U.   S.    (3   Pet.)   433,  7 

low    V.    Southwest    Va.    Imp.    Co.,  L.  ed.  732    (1830);   Bank  of  Ham- 

92   Va.   144.   52    Am.   St.   Eep.   804  ilton  v.  Dudley,  27  U.  S.   (2  Pet.) 

(1895);    Pairo    v.    Bethell,    75    Va.  492,  7  L.  ed.  496  (1827). 

825   (1881).  47.  Schmitt  v.  Traphagen,  72  N. 

United  States.  United  States  v.  J.  E.  665  (1907). 
Luce,  141  Fed.  385  (1905) ;  Home  In  New  Hampshire  parties  in 
Ins.  Co.  of  N.  Y.  V.  Va.  Carolina  equity  have  a  constitutional  right 
Chemical  Co.,  109  Fed.  681  (1901);  to  a  trial  by  jury.  Hoitt  v.  Bur- 
United  States  V.  Sweeney,  95  Fed.  leigh,  18  N.  H.  389  (1846);  Mars- 
434  (1899);  Ross-Meehan  Brake  ton  v.  Brackett,  9  N.  H.  349 
Shoe  Foundry  Co.  v.  Southern  (1838);  see  also  Tibbetts  v.  Per- 
Malleable  Iron  Co.,  72  Fed.  957  kins,  20  N.  H.  275  (1850). 
(1896);  Cameron  v.  United  States,  48.  Gage  v.  Ewing,  107  111.  11 
148  U.  S.  301,  37  L.  ed.  459  (1893);  (1883);  Woolverton  v.  Geo.  H. 
Grand  Rapids  &  L  R.  Co.  v.  Spar-  Taylor  Co.,  43  111.  App.  428  (1891); 
row,  36  Fed.  210,  1  L.  R.  A.  480  Powers  v.  Raymond,  137  Mass.  483 
(1880);  Buford  v.  Holley,  28  Fed.  (1884). 


GENERAL  EQUITY  JURISDICTION  33 

construed  ^^  as  not  binding  on  the  several  states,  the  courts 
of  the  several  states  are  free  to  take  their  stand  as  courts 
of  general  chancery  jurisdiction  on  this  subject  of  con- 
current jurisdiction  where  there  is  an  adequate  remedy  at 
law,  and  have  so  declared  themselves  with  the  single 
exception  of  probate  matters,  as  noted  above.^*^ 

§  30.  Cognizance  first  taken  by  court  of  law.  The  con- 
current jurisdiction  of  equity  as  defined  in  the  above  sec- 
tions is  subject  to  one  further  qualification  which  requires 
mention.  It  is  well  settled  that  where  the  primary  right 
or  interest  involved  is  legal,  but  is  one  over  which  law  and 
equity  both  have  jurisdiction,  if  an  action  at  law  has 
already  been  begun  equity  will  not  interfere  even  for  the 
purpose  of  granting  its  own  peculiar  remedies,  unless  the 
case  belongs  to  the  first  branch  of  the  concurrent  juris- 
diction, where  the  remedy  at  law  is  less  adequate  and 
some  distinctly  equitable  remedy  is  required.  This  rule 
rests  simply  on  the  grounds  of  priority  of  cognizance  and 
certainty  of  procedure.  The  law  having  equal  rights 
with  equity  and  being  equally  efficacious,  there  is  cer- 
tainly no  reason  why  the  latter  should  interfere  when 
the  law  is  first  in  the  field,  and  thus  increase  litigation 
and  confuse  procedure.^^ 

§  31.  Auxiliary  jurisdiction.  Following  out  our  classi- 
fication of  the  equitable  jurisdiction  on  the  basis  of  its 
relation  to  the  jurisdiction  of  the  courts  of  common  law, 
we  find  that  in  addition  to  jurisdiction  exclusive  of  and 
concurrent  with  the  courts  of  law,  equity  also  possesses 

49.  Bigelow  v.  Bigelow,  120  Michigan.  Eaton  v.  Trowbridge, 
Mass.  320  (1876);  Spies  v.  Illinois,        38   Mich.   454    (1878). 

123  U.  S.  131   (1887);  Barrows  v.  New    Jersey.      Sweeny    v.    Wil- 

Baltimore,     7     Pet.     (U.     S.)     243  liams,  36  N.  J.  Eq.  627  (1883). 

(1833).  Pennsylvania.      Brooks    v.    Phil- 

50.  See  §24,  note  36,  ante,  p.  22.  lips,  6  Pliila.   (Pa.)  392   (1867). 

51.  Illinois.  Cleveland  v.  Camp-  Tennessee.  Williams  v.  Patter- 
bell,   78   111.   App.   624    (1898).  son,   2   Overt.    (Tenn.)    229    (1814). 

Massachusetts.       Nash     v.     Me-' 
Cathern,  183  Mass.   345   (1903). 
Whitehouse  E.  P.  Vol.  1—3 


34  EQUITY  PRACTICE 

a  jurisdiction  in  aid  of  actions  at  law,  or  an  auxiliary 
jurisdiction.  The  subject  matter  of  this  jurisdiction  con- 
sists of  those  rights  and  titles  which  equity  assists  in 
enforcing  and  protecting,  and  this  extends  to  all  legal 
rights  and  titles  which  it  is  sought  to  enforce  by  civil 
suit.  The  exercise  of  this  jurisdiction  relates  solely  to 
procedure  in  procuring  evidence,  and  consists  of  special 
ways  of  obtaining  under  special  circumstances  the  evi- 
dence which  is  necessary-  in  pending  or  anticipated  litiga- 
tion. The  jurisdiction  is  exercised  in  two  classes  of  situa- 
tion: first,  where  the  assistance  necessary  to  enforce  and 
protect  a  right  or  title,  requires  that  the  parties  them- 
selves be  compelled  to  disclose  facts  and  to  produce  docu- 
ments which  originally  could  not  have  been  obtained  by 
the  common  law  procedure,  since  in  the  latter,  prior  to 
modern  statutory  provisions,  a  party  could  not  be  exam- 
ined as  a  witness,  nor  be  compelled  to  produce  documents. 
Secondly,  where  the  assistance  required  is  the  procuring 
and  preserving  of  the  evidence  of  witnesses  other  than 
the  parties  themselves  under  peculiar  circumstances  for 
which  the  common  law  made  no  provision,  since  the  law 
only  permitted  the  examination  of  witnesses  at  the  very 
trial  of  the  cause,  and  made  no  provisions  for  taking  testi- 
mony upon  commission  in  anticipation  of  the  trial,  and 
much  less  in  anticipation  of  the  bringing  of  an  action. 
This  part  of  the  jurisdiction  was  doubtless  established  in 
aid  of  proceedings  at  law,  although  the  methods  may  also 
be  used  in  suits  strictly  equitable. 

§  32.  Discovery  from  parties.  This  first  branch  of  tlie 
auxiliary  jurisdiction,  which  offers  assistance  by  obtain- 
ing evidence  from  the  parties  themselves,  is  called  dis- 
covery. By  the  word  discovery  is  meant  discovery  proper, 
not  the  bill  for  relief  and  the  sort  of  discovery  obtained 
from  the  defendant's  answer  thereto  under  oath  which 
may  be  an  incident  to  every  bill  in  equity,  nor  the  bill 
praying  for  discovery  and  relief  consequent  thereon.  The 
discovery  which  constitutes  the  first  branch  of  the  aux- 


GENERAL  EQUITY  JURISDICTION  35 

iliary  jurisdiction  is  where  the  bill  prays  such  discovery 
alone,  in  aid  of  a  separate  action  at  law,  where  the  legal 
methods  are  inadequate  for  the  purpose.  The  whole  sys- 
tem of  procedure  by  bill  for  discover}^  alone  has  now  been 
largely  superseded  by  modem  legislation.  The  Supreme 
Court  of  Judicature  Act  of  1873,  in  England,  which  abol- 
ished the  distinction  between  legal  and  equitable  actions, 
provided  for  the  examination  of  either  party  upon  inter- 
rogatories at  the  instance  of  his  adversary  and  for  the 
production  and  inspection  of  documents  by  either  party 
at  the  request  of  the  other,  and  has  practically  abrogated 
there  the  suit  for  a  discovery  as  a  branch  of  the  auxiliary 
jurisdiction  of  equity.  So  in  those  states,  before  enumer- 
ated, where  codes  have  been  adopted,  suits  for  discovery 
properly  so  called,  have  been  either  expressly  abolished 
or  practically  superseded  by  other  methods.  In  the  law 
and  equity  states  parties  are  allowed  to  testify  in  their 
own  behalf  and  are  compelled  to  testify  in  behalf  of  their 
adversary  and  to  produce  documentary  evidence;  so  that 
the  necessity  for  the  use  of  bills  of  discovery  has  been 
superseded.^2    Nevertheless,  it  is  generally  held  that  the 

52.  Alabama.    Sloss-Sheffield   Co.  Bank   &    Trust    Co.,   87   Miss.   325, 

V.     Maryland     Casualty     Co.,     167  112   Am.   St.   Eep.   443    (1905). 

Ala.  557  (1910);  Gulf  Compress  Co.  New    Hampshire.      Reynolds    v. 

V.   Jones    Cotton   Co.,    157   Ala.    32  Burgess  Sulphite  Fibre   Co.,  71   N. 

(1908);  Nixon  v.  Clear  Creek  Lum-  h_    330,   57   L.   R.   A.   946,   93   Am. 

ber   Co.,   150   Ala.   602,  9  L.   R.   A.  gt.  Rep.  535    (1902). 

1255  (1907).  jjg.^   Jersey.      Miller   v.   United 

■   Florida.     J.  T.  &  K.  W.  Ry.  Co.  states   Casualty   Co.,   61   N.  J.   Eq. 

V.   P.   L.   T.   &   M.    Co.,   27  Fla.   1  no   (1900). 

(■'^°^-'^)"  Pennsylvania,         Campbell       v. 

Illinois.       Garden    City    Co.    v.  Knowles,    13    Phila.    163     (1879); 

People,   118  111.  App.  372    (1905).  Reed  v.  Stevenson,  6  W.  N.  C.  (Pa.) 

Maine.      R.    S.    Chap.    79,    Sees.  173  (1878). 

6-10,  15.  Rhode    Island.      Clark    v.    R.    I. 

Maryland.    Union,  etc.,  Co.  v.  M.  Locomotive    Works,    24    R.    I.    307 

&   M.,   etc.,   of   Baltimore,    71    Md.  (1902). 

238   (1889).  Tennessee.     Elliston   v.   Hughes, 

Mississippi.       Enochs     v.     Miss.  1    Head    (Tenn.)    225,   227    (1858); 


36 


EQUITY  PRACTICE 


court  has  power  to  entertain  a  bill  for  discovery,  where 
jurisdiction  in  this  respect  is  iuvoked.^^  This  is  in  pur- 
suance of  the  fundamental  principle  that  where  equity 
has  originally  taken  jurisdiction  by  reason  of  the  inade- 
quacy of  the  legal  remedy,  it  will  not  afterwards  be  ousted 
of  that  jurisdiction  by  the  fact  that  the  law  has  subse- 
quently come  to  provide  an  adequate  remedy.  In  the 
United  States  courts  there  is  a  conflict  of  authority 
whether  pure  bills  for  discovery  now  lie;^^  and  in  some  of 


but  see  Duckstown  Sulphur  Co. 
V.  Fain,  109  Tenn.  56   (1902). 

West  Virginia.  Hurricane  Tel. 
Co.  V.  Mohler,  51  W.  Va.  1  (1902); 
Thompson  v.  Whitaker  Iron  Co., 
41   W.   Va.   574    (1S95). 

53.  Alabama.  Handley  v.  Heffin, 
84  Ala.  600  (1887);  Shackelford 
V.   Bankhead,   72   Ala.   476    (1882). 

niinois.  Garden  City  Sand  Co. 
V.  People,  118  Dl.  App.  372  (1905); 
Kendallville  Co.  v.  Davis,  40  111. 
App.  616  (1891).;  Grimes  v.  Hil- 
liary.   38   111.   App.   246    (1890). 

Maine.  Lancy  v.  Eandlett,  80 
Me.  169,  6  Am.  St.  Eep.  169  (1888). 

Maryland.  Union  E.  Co.  v. 
Mayor.  71  Md.  238  (18S9). 

Massachusetts.  Post  v.  Toledo, 
144  Mass.  341,  59  Am.  Eep.  86 
(1SS7). 

Michigan.  See  Smith  v.  Dono- 
van. 15S  Mich.  588   (1909). 

Mississippi.  Millsaps  v.  Pfeiffer, 
44  Miss.   SOo    (1S70). 

New  Hampshire.  Eeynolds  v. 
Burgess  Sulphite  Fibre  Co.,  71  N. 
H.  332,  93  Am.  St.  Eep.  535,  57 
L.   E.   A.   949    (1902). 

New  Jersey.  Miller  v.  U,nited 
States  Casualty  Co.,  61  X.  J.  Eq. 
110  (1900);  Ames  v.  X.  J.  F.  Co., 
12  X.  J.  Eq.  66,  68,  72  Am.  Dec. 
385  (1858);  Howell  v.  Ashmore,  9 
N.  J.  Eq.  82,  91,  57  Am.  Dee.  371 
(1852). 


Ehode  Island.  Gark  v.  E.  I. 
Locomotive  Works,  24  E.  I.  307 
(1902);  Starkweather  v.  Williams, 
21  E.  I.  55  (1898). 

Tennessee.  Elliston  v.  Hughes, 
1  Head   (Tenn.)   225,  227  (1858). 

West  Virginia.  Hurricane  Tel. 
Co.  v.  Mohler,  51  W.  Va.  1  (1902); 
Thompson  v.  Whitaker  Iron  Co., 
41  W.  Va.  574  (1895);  Eussell  v. 
Dickeschied,  24  W.  Va.  61  (1884). 

54  Cases  holding  in  the  negative. 
United  States  v.  Bitter  Boot,  etc., 
Co.,  200  U.  S.  451,  50  L.  ed.  550 
(1906),  sembJe;  Miller  v.  Moise, 
16S  Fed.  940  (1909);  Safford  v. 
Ensign  Mfg.  Co.,  120  Fed.  480, 
56  C.  C.  A.  630  (1903);  Eindskopf 
v.  Platto,  29  Fed.  130  (C.  C.  1886); 
Drexel  v.  Berney,  14  Fed.  268  (C. 
C.  1882);  Heath  v.  Erie  E.  Co., 
F.  C.  Xo.  6,307,  9  Blatchf.  316 
(C.  C.  1872). 

Contra — cases  holding  in  the 
affirmative:  Brown  v.  Magee, 
146  Fed.  765  (C.  C.  1906);  Brown 
v.  McDonald,  133  Fed.  897,  67  C. 
C.  A.  59,  68  L.  E.  A.  462  (1905); 
Indianapolis  Gas  Co.  v.  Indianap- 
olis, 90  Fed.  196  (C.  C.  1898); 
Kelley  v.  Boettcher,  85  Fed.  55,  29 
C.  C.  A.  14  (1898);  Colgate  v. 
Compagnie  Francaise,  23  Fed.  82 
(C.  C.  1885);  Bryant  v.  Leiland, 
6  Fed.  125  (C.  C.1881). 


GENERAL  EQUITY  JURISDICTION 


37 


the  states,^^  it  is  held  that  the  statutes  permitting  parties 
to  be  witnesses  necessarily  abrogated  the  jurisdiction  for 
discovery  only.  It  would  seem  on  principle,  however, 
that  in  any  jurisdiction  a  pure  bill  of  discovery  will  lie 
when  the  statutes  do  not  permit  the  production  of  evi- 
dence otherwise  obtainable  in  equity.^*^ 

§  33.  Principles  governing  pure  bill  for  discovery.  A 
pure  bill  for  discovery  is  a  bill  for  the  discovery  of  evi- 
dence to  support  a  valid  cause  of  action  or  defence  in 
favor  of  the  plaintiff  in  the  bill,^'^  to  be  used  in  some 


55.  Illinois.  A  bill  for  discovery 
does  not  lie  where  the  documents 
sought  to  be  discovered  may  be 
required  to  be  produced  under  the 
provisions  of  the  evidence  act. 
Hartford  Fire  Ins.  Co.  v.  Led- 
ford,  151  111.  App.  413  (1909). 
But  a  statute  giving  the  right  to 
compel  an  adverse  party  to  a  civil 
action  to  testify,  and  to  produce 
his  books  and  papers,  does  not  de- 
prive equity  of  its  jurisdiction  to 
compel  discovery,  especially  where 
accounting  is  also  asked.  Kendall- 
ville,  etc.,  Co.  v.  Davis,  40  111. 
App.   616    (1891). 

Maine.  See  Warren  v.  Baker, 
43  Me.  570  (1857).  This  case  was 
decided  under  statutes  giving  the 
equity  court  but  a  limited  juris- 
diction. 

Maryland.  Under  Acts  1880,  Ch. 
28,  giving  plafntiff  the  right  to 
interrogate  the  garnishee,  plain- 
tiff having  an  adequate  remedy  at 
law,  cannot  maintain  a  bill  in 
equity  against  the  garnishee  to 
obtain  a  disclosure  of  the  property 
of  the  debtor  in  his  possession. 
Morton  v.  Graflflin,  68  Md.  545 
(1888). 

Massachusetts.  Brown  v.  Corey, 
191    Mass.    189,    192    (1906);    Gunn 


V.   N.  Y.   N.   H.   &  H.   E.   Co.,   171 
Mass.  417  (1898). 

Michigan.  Sheldon  v.  Walbridge, 
44  Mich.  251  (1880);  Eiopelle  v. 
Doellner,  26  Mich.  102  (1892). 
But  by  statute  a  bill  for  discovery 
may  be  sustained  against  a  cor- 
poration, its  officers,  agents,  or 
stockholders.  McCreery  v.  Bay 
Circuit  Judge,  93  Mich.  463  (1872). 
And  where  the  evidence  cannot  be 
obtained  under  the  statutes  equity 
will  grant  relief.  Smith  v.  Wayne 
Circuit  Judge,  158  Mich.  588,  16 
Det.   Leg.   N.   731    (1909). 

56.  Sloss,  etc.,  Co.  v.  Maryland 
Casualty  Co.,  167  Ala.  557  (1910); 
Smith  V.  Wayne  Circuit  Judge,  158 
Mich.  588   (1909). 

57.  Illinois,  Primmer  v.  Patten, 
32  HI.  528   (1863). 

New  Hampshire.  Noyes  v. 
Thorpe,  73  N.  H.  481  (1906). 

New  Jersey.  Hanneman  v.  Rich- 
ler,  63  N.  J.  E.  803,  aff.  62  N.  J.  E. 
365  (1902). 

Rhode  Island.  Tillinghast  v. 
Westcott,  etc.,  Co.,  30  R.  I.  334 
(1910) ;  Clark  v.  Rhode  Island,  etc., 
Wks.,  24  R.  I.  307  (1902). 

West  Virginia.  Munson  v.  Ins. 
Co.,  55  W.  Va.  423  (1904). 

United     States.      Cassidy    Fork, 


38 


EQUITY  PRACTICE 


other  suit  pending  or  about  to  be  brought,  either  at 
law,"^*  or  in  equity.^'^  The  evidence^  to  be  discovered 
must  be  facts  in  the  knowledge  of  the  defendant,'''^  not 


etc.,  Co.  V.  Roaring  Creek,  etc.,  R. 
Co.,  119  Fed.  425  (C.  C.  19U2); 
American  Ore,  etc.,  Co.  v.  Atlas 
Cement  Co.,  110  Fed.  53  (C.  C. 
1901). 

58.  Maryland.  Parrott  v.  Ches- 
tertown  N.  Bank,  88  Md.  515 
(1898). 

Massachusetts.  "Walker  v. 
Brooks,  125  Mass.  241  (1878);  Ah- 
rend  v.  Odiorne,  118  Mass.  261,  19 
Am.  Rep.  449  (1875);  Mitchell  v. 
Green,  10  Mete.  101  (1845). 

Michigan.  Carroll  v.  Farmers' 
&  Mechanics'  Bank,  Har.  197 
(1842). 

Mississippi.  Kenney  v.  Jeffries, 
48  Miss.  343  (1873). 

New  Jersey.  United,  etc.,  Co.  v. 
Hoppock,  28  N.  J.  Eq.  261  (1877); 
Shotwell's  Adm'x  v.  Smith,  20  N. 
J.  Eq.  79   (1869). 

Pennsylvania.     Peebles  v.  Boogs, 

1  Pa.   151    (1849);    Dull   v.   Amies, 

2  Miles   134   (1837). 

Tennessee.  Hinkle  v.  Currin,  20 
Tenn.  74   (1839). 

United  States.  Mutual  Life  Ins. 
Co.  V.  Griesa,  156  Fed.  398  (1907); 
Perkins  v.  Hendryx,  23  Fed.  418 
(1885);  Markey  v.  Mutual  Ben. 
Life  Ins.  Co.,  Fed.  Cas.  No.  9,091 
(1877);  Vaughan  v.  Central  Pac. 
R.  Co.,  Fed.  Cas.  No.  16,897,  3  Ban. 
&  A.  27,  4  Sawy.  280  (1877). 

A  bill  for  discovery  may  be 
brought  either  for  the  purpose  of 
some  suit  pending  or  a  suit  in- 
tended to  be  brought.  Buckner  v. 
Ferguson,  44  Miss.  677  (1870); 
Wolf  V.  Wolf,  2  liar.  &  G.  (Md.) 
382,  18  Am.  Dec.  313   (1828). 

Where  a  party  has  an  adequate 


remedy  at  law  as  to  the  relief 
sought,  and  there  is  no  allegation 
in  his  bill  that  an  action  at  law  is 
pending  or  about  to  be  brought,  the 
bill  cannot  be  maintained  for  dis- 
covery. Haskins  v.  Burr,  106  Mass. 
48   (1870). 

A  complainant  will  not  be  con- 
sidered entitled  to  a  discovery 
against  one  prosecuting  him  in  an 
action  at  law,  unless  he  has  filed  a 
plea  therein  showing  his  defense, 
even  though  the  respondent  admits 
the  allegations  of  the  bill.  Harris 
V.   Galbraith,  43  111.  309   (1867). 

In  Mississippi  it  is  not  necessary 
that  a  pure  bill  for  discovery 
should  contain  an  allegation  that 
there  is  a  suit  at  law  pending. 
Buckner  v.  Ferguson,  44  Miss.  677 
(1870). 

59.  Pease  v.  Pease,  8  Met. 
(Mass.)  395  (1844);  Buckner  v. 
Ferguson,  44  Miss.  677  (1870). 

The  distinction  between  a  bill 
for  relief  and  a  bill  for  discovery 
is  that  in  a  bill  for  relief  the  dis- 
covery and  relief  are  sought  by  one 
and  the  same  bill,  while  in  a  bill 
for  discovery  merely,  discovery  is 
sought  only  in  aid  of  some  other 
proceeding,  either  at  law  or  in 
equity.  De  Wolf  v.  De  Wolf,  4 
R.  I.  450   (1857). 

60.  Alabama.  Shackleford  v. 
Bankhead,  72  Ala.  476  (1882); 
Irwin  V.  Bailey,  72  Ala.  467 
(1882). 

Illinois.  Primmer  v.  Patten,  32 
111.  528   (1863). 

Michigan.  Bigelow  v.  Sandford, 
98  Mich.  657   (1894). 

Mississippi.    McKee  v.  Coffee,  58 


GENERAL  EQUITY  JURISDICTTOTT 


39 


obtainable  otherwise,*^ ^  or  writings,  including  deeds  and 
other  instruments,'^-  or  other  evidential  things  in  defend- 
ant's  custody  or  power.**^  The  evidence  must  be  mate- 
rial to  the  issue  in  the  other  suit,^^  and  necessary  for 


Miss.  653  (1881);  Northrop  v. 
Flaig,  57  Miss.  754   (1880). 

Pennsylvania,  Coal,  etc.,  Co.  v. 
Hartman,  222  Pa.  172  (1908). 

Tennessee.  Whitesides  v.  Laf- 
ferty,  9  Humph.  27   (1848). 

Virginia.  Collins  v.  Sutton,  94 
Va.  127   (1896). 

United  States.  Baker  v.  Biddle, 
F.  C.  No.  764,  Baldw.  394  (C.  C. 
1831). 

But  the  extent  of  the  defend- 
ant 's  knowledge  need  not  be 
stated.  Nixon  v.  Lumber  Co.,  150 
Ala.  602,  9  L.  E.  A.  1255  (1900). 

61.  Illinois.  Primmer  v.  Patten, 
32  111.  528  (1863);  Helmle  v. 
Queenan,  18  111.  App.  103  (1885). 

Maryland.  Oliver  v.  Palmer,  11 
Gill.  &  J.  426   (1851). 

Massachusetts.  Clapp  v.  Shep- 
hard,  23  Pick.  228  (1839);  Law  v. 
Thorndike,   20   Pick.   317    (1838). 

Michigan.  Bigelow  v.  Sanford, 
98  Mich.  657  (1894). 

Mississippi.  McKee  v.  Coffee,  58 
Miss.  653   (1881). 

Bhode  Island.  Clark  v.  Rhode 
Island  Locomotive  Works,  24  E.  I. 
307    (1902). 

Tennessee.  Lindsley  v.  James, 
43  Tenn.  477  (1866);  Whitesides  v. 
Lafferty,  28  Tenn.  27  (1848). 

Virginia.  Collins  v.  Sutton,  94 
Va.   127    (1896). 

The  same  principle  is  true  in  a 
bill  for  discovery  and  relief.  Lan- 
cy  v.  Randlett,  80  Me.  169  (1888); 
Turner  v.  Dickerson,  9  N.  J.  Eq. 
140  (1852);  Thompson  v.  Whit- 
aker  Iron  Co.,  41  Va.  574  (1895). 

62.  Clapp  V.  Shephard,   23  Pick. 


(Mass.)  228  (1839);  Little  v. 
Cooper,  10  N.  J.  Eq.  273  (1854); 
Brown  v.  Edsall,  9  N.  J.  Eq.  256 
(1852);  Holmes  v.  Sherwood,  IG 
Fed.  725   (1881). 

The  fact  that  under  the  state 
law  titles  are  registered  in  a  pub- 
lic office,  does  not  affect  the  com- 
plainant's right  to  call  for  a  dis- 
covery of  the  defendant's  title. 
Gaines  v.  Masseaux,  Fed.  Cas.  No. 
5,176,  1  Woods  118   (1871). 

63.  Copper  King  of  Arizona  v. 
Robert,  74  Atl.  292  (N.  J.  1909). 
The  fact  that  all  the  officers  of  a 
corporation  are  competent  wit- 
nesses for  either  party  is  not  a 
reason  for  refusing  to  sustain  a 
bill  of  discovery  against  the  cor- 
poration. Continental  Nat.  Bank 
V.  Heilman,  66  Fed.  184  (1895). 

64.  Alabama.  Dargin  v.  Hewlitt, 
115  Ala.  510  (1897);  Dickinson  v. 
Lewis,  34  Ala.  638  (1859);  Horton 
V.  Moseley,  17  Ala.  794  (1850). 

Illinois.  Primmer  v.  Patten,  32 
111.  528   (1863). 

Maine.  Lancy  v.  Randlett,  80 
Me.  169,  6  A.  S.  R.  169  (1888). 

Michigan.  Carroll  v.  Farmers ', 
etc..  Bank,  Harr.  197  (1842). 

New  Jersey.  Turner  v.  Dicker- 
son,  9  N.  J.  E.  140   (1852). 

Pennsylvania.  Benkert  v.  Benk- 
ert,  12  Phila.  295   (1878). 

Tennessee.  Hayney  v.  Coyne,  10 
Heisk.  339   (1872). 

West  Virginia.  Prewett  v.  Bank, 
66  W.  Va.  184  (1909). 

United  States.  Alexander  v. 
Scotland,  etc.,  Co.,  47  Fed.  131  (C. 
C,    1891). 


40 


EQUITY  PRACTICE 


the  establishing  therein  of  the  case  in  favor  of  the  plain- 
tiff in  the  bill.^^  The  bill  must  not  seek  relief  on  the 
matters  to  be  discovered  but  must  be  purely  in  aid  of 
other  proceedings.^*^ 


65.  Maryland.  Culleson  v.  Bos- 
som,  1  Md.  Ch.  95   (1847). 

Massachusetts.  Kelly  v.  Mor- 
rison, 176  Mass.  531   (1900). 

New  Jersey.  Thompson  v.  Engle, 
4  N.  J.  E.  271   (1843). 

United  States.  Indianapolis 
Gas  Co.  V.  Indianapolis,  90  Fed. 
196  (C.  C.  1898);  Kelly  v.  Boett- 
cher,  85  Fed.  55,  29  C.  C.  A.  14 
(1898). 

Where  the  bill  is  simply  for  dis- 
covery, it  need  not  appear  that  the 
desired  facts  are  indispensable  to 
the  plaintiff's  case. 

Massachusetts.  Peck  v.  Ash- 
ley,  12   Met.   478    (1847). 

New  Jersey.  Howell  v.  Ash- 
more,  9  N.  J.  E.  82,  57  Am.  Dec. 
371   (1852). 

West  Virginia.  Eussell  v.  Dick- 
eschied,  24  W.  Va.  61  (1884). 

Contra.  Carroll  v.  Farmers,  etc., 
Bank,  Harr.  (Mich.)  197  (1842); 
Seggett  V.  Postley,  2  Paige  (N. 
Y.)  599  (1831);  Whitesides  v.  Laf- 
ferty,  9  Humph.  (Tenn.)  27  (1848); 
Vaughan  v.  Central,  etc.,  R.  Co., 
F.  C.  16,897,  4  Sawy.  280  (C.  C. 
1877). 

But  where  the  bill  is  for  discov- 
ery and  relief  it  must  appear  that 
only  by  the  defendants'  answer 
can    the    desired   facts   be   proved. 

Alabama.  Dargin  v.  Hewlitt, 
115    Ala.    510    (1897). 

Maine.  Lancy  v.  Eandlett,  80 
Me.  169,  6  A.  S.  B.  169  (1888). 

Massachusetts.  Ahrend  v.  Odi- 
orne,  118  Mass.  261,  19  Am.  Dec. 
449   (1875). 


Virginia.  Larkey  v.  Gardner, 
105  Va.  718   (1906). 

West  Virginia.  Thompson  v. 
Whitaker,  etc.,  Co.,  41  W.  Va.  574 
(1895). 

United  States.  Brown  v.  Swann, 
10  Pet.  497,  9  L.  ed.  508  (1836). 

66.  Michigan.  Welles  v.  River, 
etc.,  R.  Co.,  Walk.  Ch.  35  (1842). 

New  Jersey.  Little  v.  Cooper,  10 
N.  J.  Eq.  273  (1854) ;  Brown  v.  Ed- 
sall,  9  N.  J.  Eq.  256  (1852). 

Pennsylvania.  Block  v.  Univer- 
sal Ins.  Co.,  48  Leg.  Int.  160  (1883). 

West  Virginia.  Russell  v.  Dicke- 
schied,  24  W.  Va.  61  (1884). 

A  bill  for  both  relief  and  dis- 
covery cannot  be  sustained  solely 
for  the  sake  of  discovery.  Preston 
V.  Smith,  26  Fed.  884  (1886). 

Where  a  party  entitled  to  discov- 
ery only  brings  a  bill  for  relief  and 
discovery,  a  demurrer  to  the  whole 
bill  will  be  overruled.  It  should  be 
to  the  relief  only.  Conant  v.  War- 
ren, 6  Gray  (Mass.)  562  (1865); 
Wright  V.  Dame,  1  Mete.  (Mass.) 
237    (1840). 

But  where  a  bill  in  its  charging 
part  does  not  lay  sufficient  ground 
for  relief  in  equity,  but  shows  com- 
plainant to  be  entitled  to  a  discov- 
ery, the  bill  will  be  sustained  on 
that  ground,  and  the  discovery 
granted.  Midland  R.  R.  Co.  v. 
Hitchcock,  34  N.  J.  Eq.  278  (1881). 

No  relief  touching  matters  of 
discovery  is  ever  sought  or  allowed, 
except  such  as  is  merely  incidental 
to  the  discovery  sought,  such  as  a 
stay  of  a  suit  at  law,  the  produc- 


GENEEAL  EQUITY  JURISDICTION  41 

§  34.  Witnesses — Perpetuation  of  testimony,  testimony 
de  bene  esse  and  in  foreign  countries.  This  branch  of  the 
auxiliary  jurisdiction  of  equity  includes  two  divisions, 
namely,  suits  to  perpetuate  testimony  and  suits  to  take 
the  testimony  of  witnesses  de  bene  esse  and  of  witnesses 
iu  a  foreign  country.  A  suit  to  perpetuate  testimony  was 
maintained  where  the  plaintiff  had  at  the  time  some 
vested  or  contingent  right  other  than  a  mere  possibility 
or  expectancy,  which  was  likely  to  be  disputed  or  con- 
tested at  some  future  time.  Where  such  right  could  not 
at  once  be  investigated,  established  or  defended  by  an 
action  at  law,  the  cause  in  equity  did  not  proceed  any 
further  than  the  examination  of  the  witnesses,  the  mode 
of  examination  being  by  deposition  similar  to  that  pur- 
sued in  other  equity  proceedings.  The  suit  was  then  really 
at  an  end.  The  only  further  step  was  the  "publication  of 
the  evidence,"  as  it  was  called  in  the  chancery  practice, 
made  by  order  of  court,  by  which  the  parties  had  access 
to  it  for  the  purpose  of  using  it  in  some  action.  A  suit  to 
take  testimony  de  bene  esse  was  maintained  in  aid  of  a 
pending  action  at  law,  to  examine  a  witness  who  was  very 
aged,  or  who  was  sick  or  about  to  depart  from  the  country, 
or  who  was  the  only  witness  in  the  case,  on  the  ground  of 
the  danger  that  the  evidence  would  be  entirely  lost 
through  delay.  This  suit  was  distinguished  from  the 
suit  in  perpetuation  of  testimony  in  that  it  could  only  be 
brought  in  aid  of  an  existing  right  and  a  pending  action. 

tion  of  deeds,  etc.     Kenney  v.  Jef-  ments,   or   other   things,  which   are 

fries,   48    Miss.    343    (1873);    Shot-  in  his  exclusive  knowledge  or  pos- 

well's   Adm'x   v.   Smith,   20   N.   J.  session,  and  which  are  necessary  to 

Eq.  79   (1869).  the  party  seeking  the  discovery  as 

So  a  cross  bill  seeking  not  only  a  part  of  a  cause  of  action  pending 

discovery,   but    relief,    is    demurra-  or  to  be  brought  in  another  court, 

ble,  if  the  relief  prayed  for  by  the  or  as  evidence  of  his  rights  or  title 

cross  bill  be   other  than   equitable  in    such    proceeding.      Rosenberger 

relief.     Gilmer  v.  Felhour,  45  Miss.  v,   Shubert,    182   Fed.   411    (1910); 

627   (1871).  Black's    Law    Dictionary,    p.    373; 

"Discovery"  is  the  disclosure  by  Michie's  Encyc.  of  U.  S.  Supreme 

the  defendant  of  facts^  titles,  docu-  Court  Eeports,  Vol.  5,  p.  350. 


42  EQUITY  PRACTICE 

The  depositions  thus  taken  could  only  be  used  at  the  trial 
when  it  was  shown  that  the  witnesses  were  incapable  of 
attending  in  person. 

The  suit  to  examine  witnesses  in  a  foreign  country  was 
a  branch  of  the  suit  de  bene  esse.  It  was  upon  commis- 
sion issued  for  the  purpose,  in  aid  of  a  pending  action  at 
law,  and  was  founded  upon  the  original  lack  of  power  in 
the  common  law  courts  to  grant  such  commissions.  These 
suits,  however,  were  cumbersome  proceedings,  and  they 
are  now  all  three  practically  abolished  or  rendered  obso- 
lete in  both  England  and  America  by  more  simple  and 
efficient  methods  conferred  by  statute  upon  the  common 
law  courts. 

§  35.  Incidental  jurisdiction.  In  addition  to  the  exclu- 
sive, concurrent  and  auxiliary  jurisdiction  of  equity,  there 
is  a  further  exercise  of  equity  jurisdiction  contingent 
upon  and  incidental  to  relief  granted  under  the  first  three 
heads,  which  may  properly  be  designated  as  well  by  the 
term  incidental  jurisdiction  as  in  any  other  way,  since  it 
is  outside  of  or  incidental  to  the  primary  purpose  of  the 
suit.  This  jurisdiction  depends  upon  the  doctrine  of 
equity  that  where  a  court  of  equity  has  properly  obtained 
jurisdiction  over  some  portion  or  feature  of  a  controversy, 
it  may  and  generally  will  proceed  to  decide  all  the  issues 
and  to  award  complete  relief,  although  the  rights  of  the 
parties  are  strictly  legal,  and  the  final  remedy  granted  is 
the  same  as  might  be  conferred  by  a  court  of  law. 

It  may  be  exercised  in  connection  with  the  exclusive, 
concurrent  or  auxiliary  jurisdictions,  and  thus  furnishes 
the  ground  for  an  extension  of  those  jurisdictions  much 
further  into  the  realms  of  the  law  than  the  concurrent 
jurisdiction  alone,  since  the  latter  does  not  go  beyond 
those  cases  where  an  adequate  remedy  at  law  has  been 
provided  by  encroachment  on  the  ancient  jurisdiction  of 
equity,  while  the  exercise  of  this  incidental  jurisdiction 
of  equity  may  involve  rights  for  which  the  law  has  always 
provided  an  adequate  remedy,  and  which  are  beyond  the 


GENERAL  EQUITY  JURISDICTION  43 

limits  of  the  concurrent  jurisdiction  alone.  It  is  subject 
to  this  limitation,  however,  that  where  the  particular  mat- 
ter over  which  equity  has  obtained  jurisdiction  in  the 
first  instance  is  something  over  which  jurisdiction  has 
been  given  by  a  special  statute  to  grant  some  particular 
equitable  remedy,  the  court  cannot  then  extend  this  exer- 
cise of  a  special  power  to  remaining  portions  of  the  con- 
troversy which  are  purely  legal,  involving,  for  instance, 
the  title  to  land." 

§36.  Examples  of  incidental  jurisdiction.  The  most 
frequent  occasion  for  the  exercise  of  this  incidental  juris- 
diction has  been  found  in  the  auxiliary  jurisdiction  for 
discovery.  Where  a  plaintiff  has  sought  and  obtained 
a  discovery,  it  is  firmly  established  that  the  court  will  go 
on  and  decide  the  whole  controversy  and  grant  final  relief 
in  cases  possessing  some  equitable  incident  or  feature 
which  might  have  brought  it  within  either  branch  of  the 
equitable  jurisdiction,  exclusive  or  concurrent,  independ- 
ent of  the  fact  of  a  discovery.  Some  American  courts 
have  gone  further  and  assumed  to  apply  the  principles 
and  decide  all  the  issues,  after  a  discovery  in  cases  pos- 
sessing no  other  equitable  feature  or  incident.  This,  how- 
ever, would  soon  have  broken  down  all  lines  between  law 
and  equity;  consequently  limitations  were  placed  upon 
this  doctrine  by  the  courts,  requiring  the  plaintiff  to  aver 
that  he  had  no  adequate  means  of  obtaining  the  proof  in 
question  at  law,  which,  under  the  modern  legal  methods 
for  obtaining  evidence,  he  can  seldom  truthfully  do.  Thus 
the  extension  of  equity  jurisdiction  by  this  means  has 
been  practically  prevented.^^ 

67.  Phelps  V.  Harris,  51  Miss.  789  Me.  169,  6  Am.  St.  Eep.  169  (1888). 
(1875);  Collier  v.  Collier,  33  Atl.  Rhode  Island.  Gorman  v.  Bani- 
193    (N.   J.    1895);    Pomeroy's   Eq.       gan,  22  R.  I.  22  (1900). 

Jurisp.,   §  233.  West     Virginia.      Thompson      v. 

68.  Alabama.      Wolfe   v.    Under-       Whitaker,  41  W.  Va.  574  (1896). 
wood,  96  Ala.  329  (1891).  United  States.     Cecil  Nat.  Bank 

Illinois.  Robson  v.  Doyle,  191  v.  Thurber,  59  Fed.  913,  8  C.  C.  A. 
111.  566  (1901).  365,  8  U.  S.  App.  496  (1894). 

Maine.      Lancy  v.   Randlett,   80 


44  EQUITY  PRACTICE 

Another  extensive  class  of  cases  in  which  the  incidental 
jurisdiction  of  equity  is  found,  is  where  the  equitable 
remedy  of  injunction  is  sought.  It  may  be  stated  as  a 
general  proposition  that  wherever  the  court  of  equity  may 
properly  exercise  jurisdiction  by  injunction  for  some 
special  purpose,  even  though  the  injunction  covers  only 
a  portion  of  the  controversy,  it  may  go  on  and  decide  all 
the  issues,  and  make  a  final  decree  granting  full  relief, 
even  though  all  the  issues  are  legal  and  the  legal  remedies 
therefor  are  adequate.  This  is  frequently  done  in  suits 
where  jurisdiction  is  taken  to  enjoin  actions  or  judgments 
at  law.^^ 

§  37.  Incidental  relief  where  primary  relief  not  granted. 
It  is  not  always  a  prerequisite  to  the  exercise  of  the  inci- 
dental jurisdiction  that  the  primary  relief  sought  should 
be  granted.  Thus  where  specific  performance  or  cancella- 
tion is  sought,  and  it  appears  from  the  facts  disclosed  at 
the  hearing  but  not  known  to  the  plaintiff  when  he 
brought  his  suit,  that  the  special  relief  prayed  for  has 
become  impracticable,  and  the  plaintiff  is  entitled  to  the 

69.  Alabama.     Farris  v.  Dudley,  Pennsylvania.     Appeal    of    Alli- 

78  Ala.  124,  56  Am.  Eep.  24  (1884);  son,  77  Pa.  St.  221  (1875). 

Boyd     V.     Hunter,     44     Ala.     705  Vermont.     Whipple  v.  Fair  Ha- 

(1870).  ven,  63  Vt.  221  (1890). 

Delaware.     Fleming  v.  Collins,  2  Virginia.     Pack  v.  Whitaker,  110 

Del.  Ch.  230   (1859).  Va.  122  (1909);  Coons  v.  Coons,  95 

riorida.      Brown    v.    Solary,    37  Va.  434,  64  Am.  St.  Eep.  804  (1897). 

Fla.  102  (1896).  West     Virginia.     Williamson     v. 

niinois.     Am.  Hide  &  Tea  Co.  v.  Jones,  43   W.   Va.  562,  64  Am.  St. 

Anderson,  153  111.  App.  79   (1910);  Eep.  S91,  3S  L.  E.  A.  694  (1897). 

Conklin     v.     Foster,     57     HI.     104  United  States.   Gormley  v.  Clark, 

(1870).  134  U.  S.  338,  33  L.  ed.  909  (1889); 

Massachusetts.     Am.  Stay  Co.  v.  Clarke  v.  White,  37  U.  S.  (12  Pet.) 

Delaney,    211    Mass.    229     (1912);  178,  9  L.  ed.  1046   (1838);  United 

Foss  V.  Eoby,  195  Mass.  292,  10  L.  States  v.  Denver   &  E.   G.  E.   Co., 

E.    A.    1200     (1907);    Winslow    v.  190   Fed.   825    (1911);    The   Salton 

Wayson.  113  Mass.  411  (1873).  Sea  Cases,   172  Fed.   792,  97   C.  C. 

Michigan.      Ehoodes   v.   McXom-  A.   214    (1909);   Corbin  v.  Taussig, 

ara,   135   Mich.   644    (1904);    Bald-  137  Fed.  151  (1905). 
win  V.  Escanaba,  etc.,  Ass'n,   165 
Mich.  98  (1911). 


GENERAL  EQUITY  JURISDICTION 


45 


only  alternative  relief  possible,  of  damages,  the  court  then 
may,  instead  of  causing  the  plaintiff  the  trouble  and 
expense  of  beginning  over  again  at  law,  retain  the  cause 
and  give  comjDensatory  damagesJ*^ 

§  38.  Conclusion.  This  completes  the  outline  of  our 
classification  of  equity  jurisdiction  in  its  relation  to  the 
jurisdiction  of  common  law.  This  outline  is  necessarily 
elementary  and  as  brief  as  possible,  the  purpose  being 
only  to  introduce  the  reader  to  the  real  purpose  of  our 
endeavor,  viz. :  a  text  book  on  equity  practice. 


70.  Florida.  Taylor  v.  Fla.,  etc., 
E.  Co.,  54  Fla.  636  (1908). 

Illinois.  Sanitary  Dist.  v.  Mar- 
tin, 227  111.  260  (1907),  affirming 
129  111.  App.  308   (1906). 

Maryland.  Shipley  v.  Fiuk,  102 
Md.  219,  2  L.  E.  A.  (N.  S.)  1002 
(1905).  But  where  no  other  relief 
was  suggested  except  compensation 
to  plaintiff  for  his  loss,  which  could 
be  measured  by  a  jury  as  well  as 
by  an  auditor,  a  court  of  equity 
on  refusing  specific  performance, 
will  not  retain  jurisdiction  to 
award  other  relief.  Brehm  v. 
Sperry,  92  Md.  378  (1901). 

Massachusetts.  Low  v.  Low,  177 
Mass.  306  (1901);  Milkman  v.  Ord- 
way,  106  Mass.  232  (1870);  An- 
drews V.  Brown,  3  Cush.  130  (1849). 

Michigan.  Hawley  v.  Sheldon, 
Har.  Ch.  (Mich.)  420  (1842). 

New  Jersey.  Speer  v.  Erie  E. 
Co.,  68  N.  J.  Eq.  615  (1905),  re- 
versing 64   N.   J.   Eq.   601    (1903); 


Lyle  V.  Addicks,  62  N.  J.  Eq.   123 
(1901). 

Virginia.  Max  Meadows,  etc., 
Co.  V.  Bridges,  95  Va.  184   (1897). 

United  States.  Altoona  Elec. 
Eng.  &  Supply  Co.  v.  Kittanning, 
etc.,  E.  Co.,  126  Fed.  559  (1903); 
Waite  V.  O'Neil,  76  Fed.  408,  22' 
C.  C.  A.  248,  34  L.  E.  A.  550 
(1896),-  affirming  72  Fed.  348. 

But  a  bill  for  specific  perform- 
ance of  an  agreement  to  sell  prop- 
erty will  not  be  retained  to  assess 
damages  for  a  breach  of  the  con- 
tract, where  the  plaintiff  knew 
when  he  filed  his  bill  that  the  ven- 
dor had  parted  with  the  title  of 
the  property.  Farson  v.  Fogg,  205 
111.  326  (1903),  reversing  Greer  v. 
Sellers,  64  111.  App.  505  (1896); 
Mack  V.  Mcintosh,  181  111.  633 
(1899);  Pub.  Ser.  Corp.  of  New 
.Jersey  v,  Hackensack  Meadows  Co., 
72  N.  J.  Eq.  285  (1906);  Kerlin  v. 
Knipp,  207  Pa.  649  (1904);  Jones 
V.  Tunis,  99  Va.  220   (1901). 


CHAPTER  III 

JURISDICTION  IN  RESPECT  TO  PERSONS,  TERRI- 
TORY, AMOUNT 


§  39.  Persons.  The  jurisdiction  of  a  court  of  equity 
extends  to  all  persons,  natural  or  corjDorate,  with  the 
exception  of  alien  enemies  suing  as  plaintiffs,^  and  the 
state  when  named  as  a  defendant  in  a  suit  not  brought 
under  some  statutory  provision  permitting  the  suit.^  The 
jurisdictioti  of  equity  over  persons  is  more  extensive  than 
that  of  the  law,  since  there  are  certain  classes  of  persons 
over  whom  equity  takes  jurisdiction  in  circumstances 
where  the  law  does  not.  Thus,  although  even  today  in 
only  a  few  jurisdictions  can  a  married  woman  sue  her 
husband  or  be  sued  by  him  at  law,^  yet  in  all  jurisdictions 
this  may  be  done  in  equity.^ 


1.  story's  Eq.  PI.  (10th  ed.), 
§51. 

2.  See  §  47,  post,  p.  65,  for  dis- 
cussion of  the  state  as  a  defend- 
ant. 

3.  The  following  are  those  "law 
and  equity"  jurisdictions  in  which 
husband  and  wife  may  sue  each 
other  at  law: 

Illinois.  Martin  v.  Eobson,  65 
111.  129,  16  Am.  Rep.  578  (1872); 
Bea  V.  People,  101  111.  App.  132 
(1902);  Larison  v.  Larison,  9  111. 
App.  27  (1881). 

Michigan.  White  v.  White,  58 
Mich.  546  (1885);  Benson  v.  Mor- 
gan, 50  Mich.  77  (188.3);  Randall 
V.  Randall,  37  Mich.  563   (1877). 

New  Hampshire.  Pearson  v. 
Pearson,  60  N.  H.  497  (1881).    So,  a 


wife  may  be  charged  as  trustee  of 
her  husband  in  trustee  (garnish- 
ment) process.  Jones  v.  Roberts, 
60  N.  H.  216  (1880).  The  wife 
'  *  now  stands  almost  without  an  ex- 
ception upon  an  equality  with  her 
husband. ' '  Shute  v.  Sargent,  67 
N.  H.  306   (1892). 

Rhode  Island.  Smith  v.  Smith, 
20  R.  I.  556   (1898). 

4.  In  the  following  jurisdictions 
suits  by  married  women  against 
their  husbands  lie  only  in  equity: 

Florida.  Fritz  v.  Fernandez,  45 
So.  315  (1903).  See  Woods  v. 
Woods,  56  Fla.  882  (1908). 

Maine.  Perkins  v.  Blethen,  107 
Me.  443  (1911);  Copp  v.  Copp,  103 
Me.  51  (1907);  Hobbs  v.  Hobbs,  70 
Me.    383     (1880).       See    Blake    v. 


46 


JURISDICTION  IN  RESPECT  TO  PERSONS 


47 


Again,  the  rule  at  common  law  is  that  one  partner  can- 
not sue  another  in  any  matter  relating  to  the  partnership, 
except  for  a  determined  final  balance,"^  but  suits  in  equity 
for  the  adjustment  of  partnership  affairs  form  a  well- 
recognized  head  of  equity  jurisdiction.*^ 

Another  inflexible  rule  of  the  common  law  is  that  in  all 
actions  ex  contractu  no  persons  can  be  joined  either  as 
plaintiffs  or  defendants  who  have  not  a  joint  interest  in 
the  subject  matter;"  such  persons,  however,  by  seeking 


Blake,  64  Me.  177  (1874);  Laws  of 
1913,  Ch.  48. 

Maryland.  Bridges  v.  McKenna, 
14  Md.  258   (1859). 

Massachusetts.  Patterson  v.  Pat- 
terson, 197  Mass.  112  (1908);  At- 
kins V.  Atkins,  195  Mass.  124 
(1906);  Frankel  v.  Frankel,  173 
Mass.  214,  73  A.  S.  K.  266  (1899). 

Mississippi.  Thorns  v.  Thorns,  45 
Miss.  263  (1871);  Simmons  v, 
Thomas,  43  Miss.  31   (1870). 

New  Jersey.  Buttlar  v.  Buttlar, 
71  N.  J.  E.  671  (1906);  Bristol  v. 
Skerry,  64  N.  J.  E.  624  (1903); 
Bishop  V.  Bourgeois,  58  N.  J.  E. 
417  (1899).  Even  a  separation  will 
not  give  the  wife  the  right  to  sue 
the  husband  at  law.  Drum  v. 
Drum,  69  N.  J.  L.  557  (1903); 
compare  Moekridge  v.  Mockridge, 
62  N.  J.  E.  570   (1901). 

Pennsylvania.  Heckman  v. 
Heckman,  215  Pa.  203,  114  A.  S.  R. 
953  (1906).  But  the  wife  may 
bring  ejectment  process  which  is 
considered  equivalent  to  a  bill  in 
equity.  McKendray  v.  McKen- 
dray,  131  Pa.  24,  6  L.  R.  A.  506 
(1890).  And  she  may  enter  up  a 
judgment  note  and  take  out  execu- 
tion thereon.  Kennedy  v.  Knight, 
174  Pa.  408  (1896).  See  also  Act 
of  June  8,  1893,  Sec.  3,  P.  L.  344. 

Tennessee.      Key    v.    Snow,    90 


Tenn.  663  (1891);  Doherty  v. 
Choate,  84  Tenn.  192  (1885);  Ben- 
nett V.  Winfield,  57  Tenn.  440 
(1871). 

Vermont.  Kittredge  v.  Kitt- 
redge,  79  Vt.  337   (1906). 

West  Virginia.  Roseberry  v. 
Roseberry,   27   W.   Va.   759    (1886). 

United  States.  Decker  v.  Kedly, 
148  Fed.  681  (C.  C.  A.  1906).  And 
see  §  43,  post,  p.  53. 

5.  Alabama.  Tipton  v.  Nance,  4 
Ala.   194   (1842). 

Illinois.  Mudd  v.  Bates,  73  111. 
App.  576  (1898). 

Maine.  Perry  v.  Cobb,  88  Me. 
435,  49  L.  R.  A.  389  (1896). 

Maryland.  Grahame  v.  Harris,  5 
Gill  &  J.  (Md.)  489   (1833). 

Massachusetts.  Hill  v.  Clark,  7 
Allen  414  (1863) ;  Myrick  v.  Dame, 
9   Gush.   248    (1852). 

Michigan.  Davis  v.  Merrill,  51 
Mich.  480   (1883). 

6.  See,  for  examples,  Reese  v. 
McCurdy,  121  Ala.  425  (1899); 
Bruns  v.  Heise,  101  Md.  163 
(1905);  Shattuck  v.  Lamson,  10 
Gray   (Mass.)   405    (1858). 

7.  Alabama.  Beston  v.  Baker, 
106  Ala.  240   (1894). 

Illinois.  Starrett  v.  Gault,  165 
111.  99  (1896);  Kelly  v,  Kelly,  79 
111.  477  (1875). 

Maine.     Taylor  v.  Pierce,  43  Me. 


48  EQUITY  PRACTICE 

relief  in  equity  can  have  all  tlieir  rights  determined  in 
the  one  action,  as  in  the  case  of  a  bill  of  interpleader, 
where  the  holder  of  property  biings  his  bill  to  have  the 
title  of  dilfereut  claimants  to  that  property  determined.^ 

§  40.  Territory.  Generally  the  jurisdiction  of  a  conrt 
of  equity  extends  to  all  persons  residing  within  its  terri- 
torial limits,  or  who  are  served  with  process  within  such 
limits,  or  who  voluntarily  offer  to  submit  themselves  to 
the  jurisdiction  of  the  court;  and  to  all  property  within 
such  territorial  limits,  or  even  property  outside  of  such 
limits  which  can  be  reached  by  proceedings  in  personam 
against  parties  who  are  within  the  jurisdiction  of  the 
court.^ 

It  is  well  settled,  though  it  would  hardly  seem  necessary 
to  render  a  decision  upon  the  point,  that  the  court  has  no 
authority  to  render  a  decree  in  personam  against  a  non- 
resident who  has  not  been  served  with  process  within  the 
state  or  voluntarily  submitted  himself  to  the  jurisdiction. 
So  where  the  property  of  three  non-resident  defendants 
was  attached  within  the  state,  but  no  personal  seiwice 
had  been  made  upon  them,  and  alleged  property  of  the 

530    (1875);  Stoddard  v.  Gage,  41  8.  See     Chapter     Y     "Original 

Me.  287  (1856).  Bills,"  §§  125  et  seq.,  post,  pp.  235 

Maryland.       O wings     Es'rs     v.  et  seq. 

Owings,     1     H.    &    G.     (Md.)     484  9.  Illinois.      Baker      v.      Eocka- 

(1S27).  brand,  US  111.  365  (1886)  j  John- 
Massachusetts.      Grozier    v.    At-  son  v.  Gibson,  116  111.  294   (1886). 

wood,  4  Pick.  234  (1826).  Maryland.     Carroll  v.   Lee,  3  G. 

Michigan.     Barker  v.  Vernon,  53  &  J.  504.  22  Am.  Dec.  350  (1832). 

Mich.  516  (1886);  Lee  v.  Bolles,  20  Pennsylvania.          Newman        v. 

Mich.  46  (1S70).  Schreve,     229      Pa.      200      (1910); 

New  Hampshire.     Wills  v.   Cut-  Schmalz  v.  York  Mfg.  Co.,  204  Pa. 

ler,   61   X.   H.   405    (1881);    Wood-  1,    59    L.    B.    A.    907,    93    Am.    St. 

ward    V.    Sherman,    52    N.    H.    131  Eep.  782   (1902). 

(1S72).  United  States.    Lewis  v.  Darling, 

Pennsylvania.      Weil    v.    Town-  16  How.   1,  14  L.  ed.  819    (1853); 

send,  25  Pa.  Super.  Ct.  638  (1904).  California,  etc.,  Co.  v.  New  Liver- 
Vermont.     Dennison  v.  Boylston,  pool,  etc.,  Co.,  172  Fed.  792,  97  C. 

48   Vt.  439    (1876);   Page  v.' Bald-  C.  A.  214  (1909). 

win,  29  Vt.  428  (1857). 


JURISDICTION  IN  RESPECT  TO  PERSONS         49 

fourth  defendant  was  attached  which  he  pleaded  was  not 
his,  and  he  was  served  with  order  of  notice  out  of  the  state, 
it  was  held  that  the  court  had  no  jurisdiction  of  either  of 
the  defendants.^"  So  where  a  bill  in  equity  seeking  spe- 
cific performance  was  inserted  in  a  writ  of  attachment, 
and  the  defendant's  real  estate  was  attached  and  the 
defendant  served  with  process  out  of  the  state,  but  he 
was  not  and  had  not  been  a  resident  of  the  state,  and 
had  not  been  served  with  process  in  the  state  or  sub- 
mitted himself  to  the  jurisdiction  of  the  court,  the  court 
held  that  the  proceeding  was  strictly  in  personam;  that 
he  had  not  been  brought  within  the  jurisdiction  of  the 
court;  and  as  he  was  the  only  defendant,  a  decree  against 
him  would  be  wholly  nugatory  "for  a  court  of  equity 
can  only  deal  with  persons  who  can  be  compelled  by 
process  to  perform  its  decree."  ^^ 

Practitioners  frequently  suppose  that  an  order  of  notice 
served  upon  a  non-resident,  accompanied  by  an  attach- 
ment of  his  property  within  the  state,  renders  him  amena- 
ble to  the  jurisdiction  of  the  court  for  all  its  purposes.  In 
fact,  it  confers  no  jurisdiction  except  over  his  property. 
Where  equity  has  no  jurisdiction  except  in  personam,  as 
in  ancient  cliancery  practice,  such  an  order  would  give 
the  court  no  power  to  act  even  against  the  defendant's 
property.  The  contrary  is  of  course  true  under  the  mod- 
ern statutes  which  vest  the  court  of  equity  with  power 
in  rem;  ^-  but  even  where  the  court  has  the  power  to  act 

10.  Stephenson  v.  Davis,  56  Me.  to  have  jurisdiction  of  the  person 
73    (1868).  in  order  to  make  decrees  effectual, 

11.  Spurr  V.  Scoville,  3  Cush.  does  not  hold  true  in  all  cases  and 
(Mass.)  578  (1849).  See  also  Pen-  has  been  generally  disregarded,  in- 
noyer  v.  Neff,  95  U.  S.  714  (1877).  asmueh   as   jurisdiction   of   the   res 

12.  See  Chapter  XXV,  post,  pp.  enables  the  court  to  exercise  its 
704  et  seq.  own    decrees    touching   it,   by    em- 

"The    early   doctrine   laid   down  powering  an  officer  of  the  court  to 

by   some   writers   that   the   remedy  transfer  titles,  even  to  real  estate, 

in   equity   is   purely  personal,   and  by  sale  or  other  apt  methods."    De 

that,    as    decrees    in    equity    never  Puy   v.    Standard   Mineral    Co.,    88 

execute  themselves,  it  is  necessary  Me.  202   (1895). 
Whitehouse  E.  P.  Vol.  I — 4 


50  EQUITY  PRACTICE 

in  rem,  such  notice  does  not  give  jurisdiction  in  personam. 
The  notice  is  merely  to  enable  the  defendant  to  appear  in 
court  and  defend  his  interests  in  the  property  if  he  so 
desires,  and  is  made  a  prerequisite  to  the  court's  right  to 
proceed  against  such  property.  It  cannot  drag  him  per- 
sonally within  the  limits  of  the  state,  or  compel  him 
personally  to  submit  himself  to  the  decrees  of  the  court 
issuing  such  notice.'^ 

If,  however,  a  non-resident  defendant  having  been 
served  with  personal  notice  while  within  the  state  or  even 
without  such  notice,  voluntarily  appears  and  submits 
himself  to  the  jurisdiction  of  the  court,  the  court  acquires 
jurisdiction  to  render  a  personal  decree  against  him.^^ 
Moreover,  if  he  is  personally  served  with  notice  while 
within  the  state,  even  if  he  does  not  voluntarily  submit 
himself  to  the  jurisdiction  of  the  court,  it  may  proceed 
against  him  in  personam.^^  On  the  other  hand,  if  the 
defendant  resides  or  is  served  personally  with  process 
within  the  state,  since  equity  acts  chieflj^  in  personam,  it 
has  jurisdiction  over  him  even  though  the  property  in 
question  is  situated  in  another  state,  and  may  take  cog- 
nizance of  the  controversy  between  the  parties;  for 
instance,  the  court  may  in  such  case  enforce  specific  per- 
formance of  a  contract  relating  to  land,  or  redemption 
of  a  real  estate  mortgage,  although  the  land  is  out  of  the 
state;  ^^  so  it  may  order  the  sale  of  property  situated  out- 

See    also    Felcli    v.    Hooper,    119  15.  Spurr    v.    Scoville,    3    Cush. 

Mass.   52    (1875).  (Mass.)   578   (1849). 

13.  So  where  a  bill  for  iujunction  1^.  Bevans    v.    Murray,    251    111. 

was  brought  against  a  non-resident       ^^^   (1^11)5   ^^^'^  '--  ^^^'^'  ^^  ^^^«- 
*  264  (1883)  J  Wilhite  v.  Skelton,  149 

Fed.   67,   78   C.   C.   A.   635    (1906), 
rev.  82  S.  W.  932   (I.  T.  1904). 
See  also  Home  Ins.  Co.  v.  How- 
dence.    Walling  v.  Beers,  120  Mass.       ^,j^  24  N.  J.  E.  238   (1873);  Wood 
548  (1870).  ^.    Warner,  15  N.  J.  E.  81   (1862); 

14.  Dooley  v.  Watson,  1  Gray  Lewis  v.  Darling,  16  How.  1,  14 
(Mass.)  414  (1854).  L.  ed.  819   (1853). 


and  was  served  by  leaving  a  sub- 
poena at  his  last  and  usual  place 
of  abode  in   the  state  of  his  resi- 


JURISDICTION  IN  RESPECT  TO  PERSONS         51 

side  of  the  state,  in  the  execution  of  a  constructive  trust.^*^ 
§  40a.  Territorial  subdivisions.  The  jurisdiction  of  the 
courts  of  equity  of  the  various  states  and  of  the  Federal 
courts  of  equity,  as  defined  by  districts,  divisions,  circuits, 
or  counties,  is  governed  by  the  statutes  creating  the  vari- 
ous courts,  a  summary  of  which  is  beyond  the  scope  of 
this  work. 

§  41.  Amount.  In  England  it  is  a  rule  of  great  antiq- 
uity, and  still  in  force,  that  where  the  amount  claimed  in 
a  suit  in  chancery  is  less  than  ten  jDounds  sterling  or  forty 
shillings  per  annum  in  land,  the  suit  is  ' '  unworthy  of  the 
dignity  of  the  court,"  and  will  not  be  entertained  except 
in  special  cases  in  aid  of  charities,  or  in  cases  of  fraud,  or 
bills  to  establish  a  right  of  a  permanent  and  valuable 
nature. ^^  In  most  American  jurisdictions,  this  matter 
lies  within  the  discretion  of  the  court,  although  it  is  prob- 
able that  the  English  rule  would  generally  be  followed. 
The  practice  of  various  states  in  this  respect  is  summar- 
ized in  the  footnote. ^^ 

17.  Vacuum  Oil  Co.  v.  Eagle  Oil  land.  Taseher  v.  Timerman,  67  111. 
Co.,  154  Fed.  867  (1907);  Byrne  v.       App.  568  (1896). 

Jones,  159  Fed.  321   (1908)   ravers-  Maine.    The  only  ease  where  this 

ing  146  Fed.  457  (1906).  point   has   been   mentioned   is   that 

Contra.     White  v.  White,  7  G.  &  of  Woodbury  v.  Marine  Society,  90 

J.  (Md.),208  (1835);  Roller  v.  Mur-  Me.  17,  23  (1897).     The  court  here 

ray,  107  Va.  527  (1907).  said,  Peters,  C.  J.    "The  bill  claims 

18.  Story's  Eq.  PI.  (10th  ed.)  tliat  the  society  voted  to  pay  fifteen 
§§  500,  502.  dollars  as  a  charitable  contribution 

19.  Alabama.  Twenty  dollars  is  to  a  certain  poor  woman  named, 
the  minimum.  Bell  v.  Light  Co.,  and  that  she  did  not  belong  to  the 
110  Ala.  651  (1895).  See  also  class  of  persons  entitled  to  receive 
Abraham  v.  Hall,  59  Ala.  386  a  benefit  as  a  beneficiary  of  the 
(1878);  Morris  v.  Morris,  58  Ala.  society.  But  the  defendants  claim 
443  (1877);  Cowan  v.  Jones,  27  that  as  a  matter  of  fact  she  does 
Ala.   317    (1855).  come     within     the     description     of 

Delaware.    Apparently  as  in  Eng-  persons   to  whom  the   society  may 
land.     Laws   of  Delaware,   Ch.   95,  extend  charitable  aid.     The  officers 
Sec.  1.  of  the  society  must  be  entitled,  act- 
Florida.    Probably  as  in  England.  ing  in   good  faith,   to   decide   such 
(No  eases  reported.)  questions  for  themselves  when  triv- 
lUinois.     Apparently  as  in  Eng-  ial  amounts  are  involved.     'Equity 


52 


EQUITY  PRACTICE 


does  not  stoop  to  pick  up  pins.'  " 
But  in  York  v.  Murphy,  91  Me. 
320  (1898)  the  court  took  juris- 
diction of  a  suit  to  annul  a  chattel 
mortgage  to  secure  $47.25,  although 
the  point  was  expressly  raised  by 
counsel  that  the  amount  involved 
was  too  trivial.  It  might  be  argued 
in  the  first  case  that  the  facts 
brought  it  within  recognized  excep- 
tions to  the  rule,  since  it  was  a  bill 
concerning  a  charitable  society 
which  sought  by  this  particular  case 
to  test  the  permanent  right  of  the 
officers  of  the  society  to  make  such 
a  disposition  of  the  funds.  But  the 
court  relegated  it  to  the  discretion 
of  the  officers,  doubtless  not  regard- 
ing the  right  involved  as  of  such  a 
permanent  and  valuable  nature  as 
to  require  its  interference. 

Maryland.  The  minimum  is 
twenty  dollars.  Smith  v.  Wells, 
106  Md.  527  (1907);  Kuenzel  v. 
Baltimore,  93  Md.  750  (1901). 

Massachusetts.  Although  the 
usual  minimum  is  one  hundred  dol- 
lars, a  bill  filed  to  obtain  possession 
of  a  cup  which  cost  sixty  dollars 
but  had  a  special  and  peculiar  per- 
sonal value  was  held  not  frivolous 
or  for  a  trivial  amount.  Wilkinson 
v.  Stitt,  175  Mass.  581  (1900).  See 
Harrington  v.  McCarthy,  169  Mass. 
492,  61  Am.  St.  Eep.  298  (1897); 
Gale  T.  Xickerson,  151  Mass.  428, 
9  L.  E.  A.  200  (1890);  Chapman 
V.  Banker  &  Tradesman  Pub.  Co., 
128  Mass.  480  (1880);  Smith  v. 
Williams,  116  Mass.   510    (1875). 

Michigan.  The  minimum  is  one 
hundred  dollars.  McManus  v. 
City  of  Petosky,  164  Mich.  390,  17 
Detroit  Leg.  N.  1163  (1911).  See 
also  Kimmerle  v.  Village  of  Cas- 
sopolis,   160   Mich.   90    (1910);   De- 


troit V.  Wayne  Circuit  Judge,  128 
Mich.  438  (1901).  Though  the  en- 
tire amount  in  controversy  is  more 
than  one  hundred  dollars,  a  bill  in 
chancery  will  not  lie  where  it  must 
be  disposed  of  under  separate  is- 
sues, no  one  of  which  involves  so 
much.  Wallace  v.  Sorter,  52  Mich. 
159  (1883).  See  also  Bay  City 
Bridge  Co.  v.  Van  Etton,  36  Mich. 
210  (1877);  Steinbach  v.  Hill,  25 
Mich.  78  (1872).  An  allegation  of 
the  amount  in  dispute  is  not  juris- 
dictional under  Comp.  L.  §  435. 
Brant  v.  Luce,  20  Det.  Leg.  N.  743 
(1913). 

Mississippi.  Eule  probably  as  in 
England.     (Xo  cases  reported.) 

New  Hampshire.  Probably  as  in 
England.     (No  cases  reported.) 

New  Jersey.  Apparently  as  in 
England.  English  v.  Mayor  of  Jer- 
sey City,  62  X.  J.  Eq.  674  (1901); 
Ocean  City  Eailroad  Co.  v.  Bray, 
55  X.  J.  Eq.  101  (1896). 

Pennsylvania.  Probably  as  in 
England.      (Xo  cases  reported.) 

Rhode  Island.  Probably  as  in 
England.      (Xo    cases    reported.) 

Tennessee.  The  jurisdiction  of 
the  chancery  courts  is  limited  to 
cases  involving  more  than  fifty  dol- 
lars, except  where  the  controversy 
does  not  turn  wholly  upon  the 
amount  involved.  Code,  Sees.  6089, 
6090,  6091. 

Vermont.  The  jurisdiction  is  un- 
limited in  amount.  P.  S.,  Ch.  65, 
Sec.  1232. 

Virginia.  As  in  England. 
Branner  v.  Branner  's  Admrs.,  108 
Va.  660  (1908). 

West  Virginia,  There  is  no  ex- 
press restriction  as  to  amount.  See 
Code  1906,  Sec.  3620. 


CHAPTER  IV 

PARTIES 

§  42.  Parties — In  general.  In  all  the  states  having 
courts  of  general  chancery  jurisdiction  as  measured  by 
the  jurisdiction  of  the  English  High  Court  of  Chancery, 
the  principles  of  equity  procedure  followed  are  substan- 
tially the  same  as  the  practice  of  that  court,  except  in  so 
far  as  it  has  been  enlarged,  modified  or  limited  by  statute, 
rule  of  court  or  judicial  construction.  Having  therefore 
considered  briefly  the  nature  and  extent  of  general  equity 
jurisdiction  as  interpreted  by  the  courts  of  those  states 
following  the  rules  of  English  chancery  practice,  and 
having  ascertained  in  what  cases  we  may  properly 
bring  suit  for  relief  in  equity,  the  next  subject  which 
requires  consideration  is  that  of  the  parties  to  such  a  suit. 
First  then  let  us  see  what  persons  have  the  capacity  to 
sue  or  be  sued  in  equity  at  all,  or  in  other  words  who  are 
possible  parties. 

§  43.  Possible  parties — Plaintiff.  It  may  be  stated  as  a 
general  rule  that  governments,  bodies  politic  and  cor- 
porate, and  all  sorts  and  conditions  of  persons  from  the 
highest  to  the  lowest  may  sue  in  equity.^  Indeed  courts 
in  equity  will  permit  poor  persons  who  are  unable  to  pay 
the  expenses  of  litigation,  to  sue  in  forma  pauperis  as  it 
is  called,  in  which  case  counsel  is  assigned  them  and  they 
are  exempted  from  the  usual  fees.^  No  person  in  this 
country  is  absolutely  incapacitated  from  suing  except  an 
alien  enemy.^    Infants,  idiots  and  lunatics  are  said  to  be 

1.  Cooper's  Eq.  PI.  24;  Story's  389,  390,  Wyatt  Pr.  Beg.  319, 
Eq.  PI.  (10th  ed.).  Sec.  50.  Beames  Ord.  in  Ch.  44,  50,  284. 

2.  Story's  Eq.  PI.  (10th  ed.)  Sec  3.  Story's  Eq.  PI.  (10th  ed.)  Sec. 
50,  citmg  1  Harris  Ch.  Pr.  by  Newl.  51. 

53 


54 


EQUITY  PRACTICE 


partially  incapacitated,  that  is,  they  are  unable  to  sue  by 
themselves  alone  in  their  own  names,  suit  being  brought 
in  their  names  by  some  person  as  next  friend.^  Married 
vromen  in  some  of  the  jurisdictions  remain  under  partial 
incapacity,  suit  being  brought  by  them  either  with  their 
husbands  as  joint  plaintiffs,  or  in  their  own  names  by 
some  person  as  next  friend,  in  which  latter  case  the  hus- 
band is  usually  named  as  a  defendant ;  ^  but  in  most  of 
the  jurisdictions  by  the  modem  practice  married  women 
may  sue  alone  in  their  own  names  as  if  they  were  sole.° 

tion  and  can  he  made  a  party,  un- 
less she  claims  a  right  adverse  to 
his,  when  she  should  sue  by  next 
friend,  naming  her  husband  as  a 
defendant.  Birn  v.  Heath,  6  How. 
248  (18-48);  Burt  v.  Cumberland 
Coal  Co.,  159  Fed.  905  (C.  C.  A. 
1908);  Taylor  v.  Holmes,  14  Fed. 
498  (C.  C.  1882),  decree  affirmed 
127  U.  S.  489,  32  L.  ed.  179  (1888); 
Douglas  V.  Butler,  6  Fed.  228  (C. 
C.  1881).  State  statutes  permitting 
suit  without  joining  the  husband 
do  not  affect  Federal  equity  prac- 
tice. Wills  V.  Pauly,  51  Fed.  257 
(C.  C.  1892).  But  a  married  woman 
may  sue  in  her  own  name,  without 
joining  her  husband,  to  enjoin  in- 
fringement of  a  patent  of  which 
she  is  sole  owner.  Lorillard  v. 
Standard  Oil  Co.,  2  Fed.  902  (C.  C. 
1880) ;  Armstrong  v.  Syracuse 
Screw  Co.,  16  Fed.  168  (C.  C.  1883). 
And  it  seems  that  where  a  married 
woman  has  the  right  to  sue  alone  in 
a  state  court,  she  may  remove  a 
case  to  a  Federal  court  of  equity 
and  there  maintain  the  suit  alone. 
Matthews  a*.  Murchison,  17  Fed. 
760   (C.  C.  1883). 

6.  Alabama.  So  by  Code  of  1907, 
Sec.   4493. 

Delaware.  R.  C.  of  1852  as 
amended  1893,  p.  600;  Laws  of 
Del.,   Vol.    14,   Ch.   550,   Sec.   4. 


4.  See  notes  14  to  35,  post. 

5.  Florida.  In  Woods  v;  Woods, 
56  Fla.  862  (1908),  the  Florida  prac- 
tice is  thus  described:  An  adult 
married  woman  sues  by  next  friend 
when  property  or  personal  rights 
are  involved;  the  next  friend  may 
be  her  husband  when  the  suit  is 
against  third  parties;  a  suit  by  a 
married  woman  against  her  hus- 
band to  enforce  a  personal  right 
such  as  divorce  or  alimony  not  in- 
volving trusts  or  the  title  or  man- 
agement of  property  need  not  be 
by  next  friend;  suit  by  next  friend 
is  merely  to  secure  the  costs;  the 
court  will  protect  her  rights 
whether  she  sues  by  next  friend  or 
alone.  A  married  woman  who  has 
been  licensed  under  the  statute  to 
trade  alone  may  even  at  law  sue 
without  next  friend.  Smith  v. 
Smith,  18  Fla.  789  (1882). 

Tennessee.  A  married  woman 
who  is  not  separated  from  her  hus- 
band sues  in  equity  by  next  friend, 
and  if  the  suit  concerns  her  separate 
property  her  husband  should  be 
named  as  a  defendant.  Key  v. 
Snow,  90  Tenn.  663  (1891);  Moore 
v.  Walker,  3  Lea  656  (1879). 

United  States.  A  married  woman 
should  sue  jointly  with  her  hus- 
band, if  he  is  within  the  jurisdic- 


PARTIES 


55 


§  44.  — The  state.  All  parties  politic  and  corporate  and 
individuals  not  nnder  disability  of  course  sue  alone  and 


Illinois.  Married  women  may 
sue  and  be  sued  alone.  R.  S.,  Ch. 
68,  Sec.  1.  Accordingly,  the  hus- 
band need  not  join  or  be  joined  in 
a  bill  to  enforce  a  vendor's  lien 
for  purchase  money  upon  a  sale  of 
her  separate  estate.  Wing  v. 
Goodman,  75  111.  159  (1874).  In 
Johnson  v.  Huber,  134  111.  511 
(1890),  however,  it  is  said  that  it 
would  be  advisable  to  join  the  hus- 
band as  plaintiff  in  a  creditors'  bill 
brought  by  the  wife,  where  they 
lived  together  in  another  state  at 
the  time  of  filing  the  bill. 

Maine.  By  R.  S.,  Ch.  63,  Sec.  5, 
a  married  woman  may  sue  or  be 
sued,  in  law  or  in  equity,  without 
the  joinder  of  her  husband.  It  is 
not  necessary  that  suit  should  be 
brought  in  her  name  by  next 
friend. 

Maryland.  So  by  Laws  of  1898, 
Chapter  457. 

Massachusetts.  Under  the  stat- 
ute in  Massachusetts  permitting  a 
wife  to  sue  and  be  sued  in  all  mat- 
ters relating  to  her  property  as  if 
she  were  sole  it  is  held  that  she 
need  not  sue  by  next  friend,  and 
that  her  husband  need  not  be  made 
a  party  to  a  bill  in  equity  brought 
by  her  concerning  her  separate 
property.  Forbes  v.  Tuekerman, 
115  Mass.  115  (1874).  Compare 
under  earlier  statutes  Conant  v. 
Warren,  6  Gray  562  (1856);  Burns 
V.  Lynde,  6  All.  305  (1863);  Greg- 
ory v.  Pierce,  4  Met.  478  (1842). 

Michigan.  The  statute  provides 
that  action  may  be  brought  by  or 
against  married  women  in  respect 
to   their   sole   property   as   if   they 


were  unmarried.  See  Leonard  v. 
Pope,  27  Mich.  145  (1873),  and 
Berger  v.  Jacobs,  21  Mich.  215 
(1870),  cases  of  actions  at  law.  In 
Sanborn  v.  Sanborn,  104  Mich.  180 
(1895),  a  deserted  wife  sued  in 
equity  as  if  sole.  But  the  princi- 
ple extends  to  wives  who  are  not 
deserted.  Root  v.  Root,  164  Mich. 
638   (1911). 

New  Hampshire.  Married  women 
may  sue  alone  even  at  law  in  ac- 
tions concerning  their  separate 
property.  Whidden  v.  Coleman,  47 
N.  H.  297  (1867);  Jordon  v.  Cum- 
mings,  43  N.  H.  134  (1861).  A 
fortiori  in  equity. 

New  Jersey.  It  was  held  in  the 
earlier  cases  that  a  married  woman 
should  sue  by  next  friend  in  re- 
lation to  her  separate  property, 
joining  her  husband  as  a  necessary 
defendant.  Barrett  v.  Doughty,  25 
N.  J.  Eq.  379  (1874);  Tunnard  v. 
Little,  23  N.  J.  Eq.  264  (1872); 
Johnson  v.  Vail,  14  N.  J.  Eq.  423 
(1862).  If  the  wife  did  not  sue  by 
next  friend  and  no  objection  was 
interposed,  the  decree  would  be 
that  any  fund  recovered  be  paid  to 
a  trustee  for  the  wife.  Johnson  v. 
Vail,  14  N.  J.  Eq.  423  (1862).  And 
if  she  erroneously  made  her  hus- 
band co-plaintiff,  she  might  amend 
by  adding  a  next  friend  and  mak- 
ing the  husband  defendant.  Ibid; 
Barrett  v.  Doughty,  25  N.  J.  Eq. 
379  (1874).  But  under  a  statute 
providing  that  she  shall  have  in 
her  own  name  the  same  remedies 
for  the  recovery  and  protection  of 
her  property  as  if  she  were  sole, 
the  wife  may  bring  the  action  in 
her  own  name  without  next  friend. 


56 


EQUITY  PRACTICE 


in  their  own  names,  but  the  state  sues  usually,  in  equity, 
in  the  name  of  its  attorney  general, — that  is,  the  attorney 
general  is  the  actual  plaintiff  on  the  record/  The  plead- 
ing in  such  cases  is  called  an  information,  but  it  does  not 


Tantum  v.  Coloman,  26  N.  J.  Eq. 
128  (1875);  Van  Orden  v.  Van 
Orden,  41  A.  671   (N.  J.  Ch.  1898). 

Pennsylvania.  Married  women 
sue  as  if  unmarried  in  law  and 
equity,  except  in  certain  cases 
when  their  husbands  are  defend- 
ants. Act  of  June  8,  1893,  Sec.  3, 
P.  L.  344;  Dorsett  v.  Dorsett,  226 
Pa.  337  (1910). 

Rhode  Island.  By  Gen.  Laws,  Ch. 
194,  Sec.  12,  the  disabilities  of  mar- 
ried women  have  been  removed  so 
that  they  sue  both  at  law  and  in 
equity  without  joining  either  hus- 
band or  next  friend.  Smith  v. 
Smith,  20  R.  I.  556  (1898),  trover; 
Core}'  V.  Howard,  19  R.  I.  723 
(1896);  Taylor  v..  Slater,  18  R.  I. 
797  (1895). 

Vermont.  A  married  woman  may 
contract  with  third  persons,  and 
sue  them  and  be  sued  by  them, 
even  at  law,  as  if  she  were  sole. 
Buck  V.  Troy,  etc.,  Co!,  76  Vt.  75 
(1903);  Swerdferger  v.  Hopkins,  67 
Vt.-  136  (1894);  Gustin  v.  Carpen- 
ter, 51  Vt.  585  (1879),  tort  to  mar- 
ried woman.  A  fortiori  is  this  true 
in  equity.  Her  husband  is  not  a 
proper  co-plaintiff  in  a  foreclosure 
on  a  mortgage  which  she  owns. 
Bartlett  v.  Boyd,  34  Vt.  256  (1861). 

Virginia.  All  disabilities  of  the 
wife  in  regard  to  property  interests 
are  removed  by  statute  and  she 
may  sue  or  be  sued  even  at  law  as 
if  sole,  and  if  she  joins  husband  or 
next  friend,  they  will  be  struck  out. 
Richmond,  etc.,  Co.  v.  Bowles,  92 
Va.    738    (1896);    Norfolk,   etc.,   R. 


Co.  V.  Dougherty,  92  A'a.  372  (1895). 
A  fortiori,  in  equity. 

West  Virginia.  By  statute,  a 
married  woman  may  sue  or  be  sued 
in  any  court  of  law  or  chancery  as 
if  she  were  sole.  Code  1906,  Sec. 
3683;  Clay  v.  St.  Albans,  43  W.  Va. 
539,  64  Am.  St.  Rep.  883  (1895); 
Matthews  v.  Greer,  21  W.  Va.  694 
(1883). 

Prior  to  the  statute,  the  husband 
must  join  as  plaintiff,  at  least 
where  the  controversy  concerned 
property  not  her  sole  property. 
Wyatt  V.  Simpson,  8  W.  Va.  394 
(1875).  In  Fox  v.  Manufacturers, 
etc.,  Co.,  31  W.  Va.  374  (1888),  it 
was  intimated  that  she  might 
either  join  her  husband  as  plain- 
tiff or  sue  alone,  when  the  action 
concerned  her  separate  property. 
A  demurrer  to  her  bill  for  non- 
joinder of  her  husband  was  held 
properly  overruled  in  Rader  v. 
Neal,  13   W.   Va.   373    (1878). 

See  Chapter  III,  §  39,  ante,  p. 
46,  for  cases  relating  to  the  right 
of  husbands  and  wives  to  sue  each 
other. 

7.  In  a  few  jurisdictions  although 
the  suit  is  conducted  by  the  at- 
torney general,  the  suit  is  in  the 
name  of  the  state.  So  in  Ala- 
bama. Code  of  1907,  §§  2440,  3087; 
State  V.  Vincent,  78  Ala.  233 
(1884).  And  in  Maryland.  State 
ex  rel.  McClellan  v.  Graves  et  ah, 
19  Md.  351  (1863).  And  in  the 
Federal  courts.  Benton  v.  Wool- 
sey,  12  Pet.  27,  9  L.  ed.  987  (1838); 
Atty.  Gen.  v.  Rumford  Chem.  Wks., 
32  Fed.  608   (C.  C.  1876). 


PARTIES 


57 


differ  substantially  from  a  bill.  Where  the  suit  immedi- 
ately concerns  the  rights  and  interests  of  the  state  alone, 
the  attorney  general  brings  an  information  in  his  own 
name  without  uniting  the  name  of  any  other  person,^  but 
in  all  other  cases,  where  it  concerns  the  general  public 
rights  and  interests  the  attorney  general  sues  upon  the 
information  of  some  other  person  called  the  relator,  whose 
name  is  inserted  in  the  information  and  who  becomes 
thereby  responsible  for  costs  and  the  propriety  and  con- 
duct of  the  suit/^  But  the  relator  cannot  take  any  steps 
in  the  case  in  his  own  name  independently  of  the  attorney 
general.  ^"^    Sometimes  the  relator  has  a  personal  interest 


8.  Atty.  Gen.  v,  Detroit,  71  Mich. 
92  (1888);  Atty.  Gen.  v.  Hudson 
County  Water  Co.,  76  N.  J.  Eq. 
543  (1909);  Atty.  Gen.  v.  Dela- 
ware, etc.,  E.  Co.,  27  N.  J.  Eq.  1 
(1876). 

This  happens  particularly  in  the 
case  of  charitable  trusts.  See 
cases  in  note  13,  post,  p.  59. 

In  all  such  cases,  the  courts  are 
open  to  the  state  without  requir- 
ing security  for  costs.  Atty.  Gen. 
V.  Delaware,  etc.,  E.  Co.,  27  N.  J. 
Eq.  1  (1876). 

9.  Atty.  Gen.  v.  Parker,  126 
Mass.  216  (1879);  Atty.  Gen.  v. 
Hane,  50  Mich.  447  (1883);  Atty. 
Gen.  V.  Moliter,  26  Mich.  444 
(1873). 

An  information  cannot  be 
brought  solely  for  the  protection 
of  the  relator's  private  interests. 
People  V.  Gen.  El.  E.  Co.,  172  111. 
129    (1898). 

The  relator  is  some  person  or 
corporation  whose  private  inter- 
ests are  involved  in  the  dispute 
suiSciently  so  that  the  protection 
of  the  rights  of  the  public  will 
benefit  him  individually.  Dist.  Atty. 
v.  Lynn,  etc.,  E.  Co.,  16  Gray 
(Mass.)   242   (1860).     See  the  cases 


in  the  various  notes  to  this  section 
for  examples  of  persons  or  cor- 
porations who  may  be  relators. 
But  the  information  need  not  dis- 
close any  special  interest  on  the 
part  of  the  relator.  McCarter  v. 
Pitman,  etc..  Gas.  Co.,  74  N.  J.  Eq. 
255  (1908).  In  states  where  ordi- 
nary chancery  suits  are  brought 
directly  in  the  name  of  the  state 
(see  note  7,  ante)  informations  of 
this  sort  are  also  in  the  name  of 
the  state.  See,  for  example,  State 
ex  rel,  v.  City  Council,  74  Ala.  226 
(1883);  State  ex  rel.  v.  Mayor, 
24   Ala.   701    (1854). 

10.  Hesing  v.  Atty.  Gen.,  104  111. 
292  (1882);  Parker  v.  May,  5  Cush. 
(Mass.)  336  (1850);  Atty.  Gen.  v. 
Moliter,  26  Mich.  444  (1873);  U. 
S.  V.  San  Jacinto  Tin  Co.,  125  U. 
S.  273,  31  L.  ed.  747   (1887). 

Even  a  notice  of  motion  is  ir- 
regular if  given  by  the  relator. 
Atty.  Gen.  v.  Wright,  3  Beav.  147, 
10  L.  J.  Ch.  234,  43  Eng.  Ch.  447, 
49  Eng.  Eep.  176. 

The  attorney  general  may  dis- 
miss the  information  and  the  re- 
lator cannot  appeal.  Hesing  v. 
Atty.  Gen.,  104  111.  292   (1882). 


58 


EQUITY  PRACTICE 


in  the  matter  in  disinite.  In  such  case,  the  joersonal  com- 
plaint of  the  rehitor  ma}-  be  joined  with  the  information 
of  the  attomej'  general,  and  the  suit  be  thus  conducted 
jointly  under  the  title  of  an  information  and  bill.^^  Infor- 
mations in  equity  in  the  name  of  the  attorney  general  are, 
apart  from  statutes,  usually  sustained  in  only  two  classes 
of  cases:  first,  those  of  public  nuisances  which  affect  pub- 
lic safety  or  convenience  and  require  immediate  interven- 
tion, such  as  obstruction  of  highways,  public  landings 
and  navigable  waters;  ^-  second,  cases  of  trusts  for  char- 


11.  Atty.  Gen.  v.  Parker,  126 
Mass.  216  (1878);  Atty.  Gen.  v. 
Dublin,  38  X.  H.  459  (1859);  Atty. 
Gen.  V.  Central  E.  Co.,  61  X.  J.  E. 
259  (1901);  Xewark  Plank  Road, 
etc.,  Co.  V.  Elmer,  9  X.  J.  Eq.  754 
(1855).  But  if  it  appears  that  the 
private  individual  has  no  interest 
of  his  own,  the  bill  will  be  dis- 
missed, though  the  information 
may  be  retained.  Atty.  Gen.  v. 
Parker,   126  Mass.  216   (1878). 

An  information  may  be  amended 
by  leave  of  court,  to  become  a 
technical  bill  in  equity.  Thomp- 
son V.  Thompson,  6  Houst.  (Del.) 
225  (1881).  Conversely  a  bill  may 
be  amended  into  an  information. 
Atty.  Gen.  v.  Dublin,  38  X.  H. 
459  (1859).  Contra,  holding  that 
when  the  attorney  general  fails  to 
maintain  an  information,  he  can- 
not then  contend  that  the  relator 
is  complainant  and  the  information 
a  bill,  Atty.  Gen.  v.  Evart,  etc., 
Co.,   34  Mich.  462    (1876). 

12.  Alabama.  Deer  v.  State  ex 
reh,  155  Ala.  521  (1908);  State 
ex  reh  v.  Mavor,  24  Ala.  701 
(1854). 

Delaware,      Gray,   Atty.   Gen.   v. 
Baynard,  5  Del.  c"h.  499  (1883). 
Florida.     Semhle  from  Brown  v. 


Chautauqua  Assn.,  59  Fla.  447 
(1910);  Garnette  v.  Jacksonville, 
etc.,  R.  Co.,  20  Fla.  889  (1884), 
neither  of  which,  however,  is  the 
case  of  an  information. 

Illinois.  Atty.  Gen.  v.  Chicago, 
etc.,  R.  Co.,  20  in.  App.  283  (1886), 
aff.   121   111.  638   (1887). 

Maine.  Xo  reported  eases,  but 
the  courts  of  equity  in  this  state 
do  in  fact  act  upon  information  in 
equity,  in  the  class  of  cases  stated 
in  the  text. 

Maryland.  State  ex  reh  v. 
Graves,  19  Md.  351   (1863). 

Massachusetts.  Atty.  Gen.  v. 
Tarr,  148  Mass.  309  (1889);  Ken- 
ney  v.  Consumers  Gas  Co.,  142 
Mass.  417  (1886);  Atty.  Gen.  v. 
Williams,   140  Mass.  329   (1885). 

Michigan.  Atty.  Gen.  v.  Detroit, 
71  Mich.  92  (1888). 

Mississippi.  Semble         from 

Learned  v.  Hunt,  63  Miss.  373 
(1893),  not  a  case  of  an  informa- 
tion. 

New  Jersey.  Wilson  v.  East 
Xew  Jersey  Water  Co.,  78  X.  J.  Eq. 
329  (1911);  McCarter  v.  Lehigh 
Valley  R.  Co.,  78  X^.  J.  Eq.  346 
(1911);  McCarter  v.  Ludlum  Steel, 
etc.,  Co.,  71  X.  J.  Eq.  330  (1906). 
But  the  court  is  loth  to  take  juris- 


PARTIES 


59 


itable  purposes  where  the  beneficiaries  are  so  numerous 
and  indefinite  that  the  breach  of  trust  cannot  be  effec- 
tively redressed  except  by  suit  in  behalf  of  the  public.^^ 
§  45.  — Infants.  An  infant  on  account  of  his  supposed 
want  of  discretion  as  well  as  his  inability  to  bind  himself 
and  render  himself  liable  for  costs  and  expenses  of  suit, 
must  sue  by  another  person,  an  adult  known  as  his  next 
friend  (prochein  ami)^"^  who  is  in  theory  the  nearest  rela- 


diction  of  an  information.  Atty. 
Gen.  V.  Heishon,  18  N.  J.  Eq.  410 
(1876);  Atty.  Gen.  v.  Brown,  24 
N.  J.  Eq.  89    (1873). 

13.  Delaware.  State  v.  Griflath,  2 
Del.  Ch.  392,  421   (1847-8). 

Illinois.  Semble  from  Newberry 
V.  Blatehford,  106  111.  584  (1883); 
Atty.  Gen.  v.  Newberry,  51  111. 
App.  166,  aff.  150  111.  229  (1893), 
in  which  cases  the  attorney  general 
was  named  as  a  defendant. 

Massachusetts.  Atty.  Gen.  v. 
Garrison,  101  Mass.  223  (1869); 
Jackson  v.  Phillips,  14  Allen 
(Mass.)    539    (1867). 

Michigan.  Atty.  Gen.  v.  Soule, 
28  Mich.  153   (1873). 

New  Hampshire.  Orford  Society 
V.  Orford,  55  N.  H.  463  (1873); 
Atty.  Gen.  v.  Dublin,  38  N.  H. 
459    (1859). 

New  Jersey.  Semble  from  Trus- 
tees of  Princeton  University  v. 
Wilson,  78  N.  J.  Eq.  1  (1910), 
where  the  attorney  general  was 
a  defendant;  Atty.  Gen.  v.  Moore, 
19  N.  J.  Eq.  503   (1868). 

Tennessee.  State  v.  Ausmus,  35 
S.  W.  1021   (Tenn.  Ch.  App.  1895). 

Virginia.  Gallego's  Exors.  v. 
Atty.  Gen.,  3  Leigh  450   (1832). 

In  Maryland  there  is  a  lack  of 
power  in  the  chancery  courts  to 
take  jurisdiction  of  charitable 
trusts.      Dumfries   v.   Abererombie, 


46  Md.  172  (1876);  Dashiel  v.  Atty. 
Gen.,  5  H.  &  J.  (Md.)  392,  9  Am. 
Dec.  572   (1822). 

14.  Alabama.  Code  1907,  §2476. 
It  is  doubtful  however  whether 
this  section  applies  to  chancery. 
See  Cook  v.  Adams,  27  Ala.  294 
(1855).  In  any  event,  it  probably 
applies  only  to  cases  where  there 
is  no  general  guardian  or  he  is 
unable  to  act.  See  Code  1907, 
§  2478,  and  note  16,  post. 

Delaware.  Eauche  v.  Blumen- 
thal,  4  Pen.  521  (1904),  suit  at 
law. 

Florida.  See  G.  S.  second  div. 
Title  1,  Art.  1,  See.  1366;  Pace  v. 
Pace,  19  Fla.  438  (1882). 

Illinois.  •  Hoare  v.  Harris,  11  111. 
24  (1849);  compare  Linebaugh  v. 
Atwater,  173  111.  613  (1898). 

Maryland.  Mumma  v.  Brinton, 
77  Md.  197   (1893). 

Michigan.  See  How.  Ann.  St. 
(2d  ed.)  §§  13500,  13501,  13502;  C. 
L.  §§  10455,  10456,  10457. 

Mississippi.  See  Code  1906,  Sec. 
960  and  Sec.  3522. 

New  Hampshire.  Woodman  v. 
Eowe,  59  N.  H.  453   (1879). 

New  Jersey.  Moore  v.  Moore, 
74  N.  .1.  E.  733   (1908). 

Pennsylvania.  Heft  v.  Me  Gill, 
3  Pa.  256   (1846). 

Bhode  Island.  Crafts  v.  Carr, 
24  R.   I.   397,   60  L.   R.   A.   128,   96 


60 


EQUITY  PRACTICE 


tive,  but  who  is  often  a  mere  stranger.  The  name  of  the 
next  friend  is  always  mentioned  in  the  title  of  the  cause, 
but  does  not  as  such  occur  elsewhere  in  the  pleadings.^^ 
It  is  not  technically  proper,  although  not  uncommon  in 
actual  practice,  for  an  infant  to  sue  by  general  guardian 
or  guardian  ad  litem  as  such,  although  the  guardian  is 
often  the  person  who  serves  as  the  next  friend. ^^ 


Am.  St.  Eep.  721  (1902),  action  at 
law. 

Tennessee.     See  Code,  Sec.  4930. 

Vermont.  Thomas  v.  Dike,  11 
Vt.  2.73   (1839),  action  at  law. 

Virginia.     See  Code,  Sec.  2614. 

West  Virginia.  See  Code  1906 
See.  3227. 

United  States.  Equity  rule  70 
of  the  Eules  of  1913  (Rule  85  in 
the  former  rules),  provides  that 
"all  infants  and  other  persons  so 
incapable  may  sue  by  their  guard- 
ian, if  any,  or  by  their  prochein 
ami;  subject,  howevef,  to  such 
orders  as  the  court  or  judge  may 
direct  for  the  protection  of  in- 
fants and  other  persons."  This 
rule  does  not  seem  to  have  altered 
the  general  chancery  practice,  and 
infants  in  the  Federal  courts  ordi- 
narily bring  suit  by  next  friend, 
and  the  latter  is  responsible  for 
costs  if  the  suit  is  unsuccessful; 
but  the  next  friend  may  be  super- 
seded by  a  guardian  ad  litem,  if 
the  court  thinks  best.  King  v. 
McLean  Asylum,  64  Fed.  325,  354 
(C.  C.  A.  1894);  Woolridge  v.  Mc- 
Kenna,  8  Fed.  650,  669  (C.  C. 
1881).  One  who  is  personally  in- 
terested cannot  act  as  next  friend. 
Jarvis  v.  Crozier,  98  Fed.  753 
(C.  C.  1899).  If  the  next  friend 
dies  during  the  infant 's  minority, 
the  defendant  may  have  the  bill 
dismissed,   if   no    new   next   friend 


takes  up  the  case;  but  without 
costs.  Morgan  v.  Potter,  157  U. 
S.  195,  39  L.  ed.  670   (1895). 

15.  Suit  should  be  in  the  name  of 
the  infant  by  the  next  friend  (A. 
B.  an  infant,  by  B.  C.  his  next 
friend),  and  not  in  the  name  of 
the  next  friend  as  next  friend  of 
the  infant.  Paul  v.  Frierson,  21 
Fla.  529  (1885);  Morgan  v.  Pot- 
ter, 157  U.  S.  195,  39  L.  ed.  670 
(1895). 

16.  In  Alabama  prior  to  the  stat- 
ute now  Sec.  2476,  Code  of  1907, 
suit  was  either  by  next  friend  or 
by  general  guardian.  Hook  v. 
Smith,  18  Ala.  338  (1850).. If  there 
is  a  general  guardian,  or  if  one  is 
subsequently  appointed,  he  now 
has  the  right  to  sue  or  to  be  sub- 
stituted in  a  suit  already  brought. 
Code  1907,  See.  2478.  But  suit 
cannot  be  in  the  guardian's  name 
as  plaintiff.  West  v.  West,  90  Ala. 
458    (1890). 

In  Maryland  and  New  Jersey  by 
statute  suit  may  be  "by  guard- 
ian," and  in  West  Virginia  a 
"guardian  for  the  suit"  may  be 
appointed  but  the  latter  is  not 
more  than  a  "next  friend"  in 
effect. 

In  Illinois  guardians  may  sue  in 
their  own  name,  at  least  at  law, 
to  recover  the  personal  property 
but  not  the  real  property  of  their 
wards.      Wright    v.    Cosmopolitan 


PARTIES 


61 


The  next  friend  is,  in  nearly  all  jurisdictions,  liable  for 
costs  of  suit  ^^  but  if  the  infant  reaches  his  majority  and 
then  elects  to  proceed  with  the  case,  he  is  himself  liable 
for  the  whole  costs.^^  If  the  suit  is  wantonly  and  improp- 
erly instituted  by  the  next  friend,  he  is  liable  to  the  cen- 
sure of  the  court,  and  if  the  suit  is  not  properly  conducted 
by  him  through  collusion,  neglect  or  mistake,  a  new  bill 
may  be  brought  in  behalf  of  the  infant.^^    In  some  states. 


Life  Ins.  Assn.,  154  111.  App.  201 
(1910);  MuUer  v.  Benner,  69  111. 
108    (1873). 

In  Folger  v.  Buck,  66  Me.  205 
(1877),  a  guardian  brought  suit 
for  a  minor  to  enforce  a  trust. 
The  question  of  the  necessity  of 
the  appointment  of  a  next  friend 
was  not  raised,  but  the  court  said 
that  suit  should  be  in  the  name 
of  the  ward;  and  see  R.  S.  of 
Maine,  Ch.  69,  Sec.   14. 

In  New  Hampshire,  an  infant 
may  sUe  by  guardian,  but  appar- 
ently the  suit  is  in  the  infant 's 
name  by  the  guardian.  P.  S.  Ch. 
177,  Sec.  1.  Woodman  v.  Rowe,  59 
N.   H.  453    (1879). 

Even  though  there  is  a  gen- 
eral guardian,  suit  may  be  by 
another  person  as  next  friend.  De- 
ford  V.  State,  30  Md.  179  (1869); 
Hurt  V.  Southern  R.  Co.,  40  Miss. 
391  (1866);  Thomas  v.  Dike,  11 
Vt.  273  (1839).  And  even  though 
the  funds  to  be  collected  go  to 
the  guardian.  Lawson  v.  Kirch- 
ner,   50   W.   Va.   344    (1902). 

17.  Alabama.  Hughes  v.  Hughes, 
44  Ala.  698  (1870);  Gray  v.  Gray, 
15   Ala.  779   (1849). 

Delaware.  Rauehe  v.  Blumen- 
thal,  4  Penne.  521  (1904),  action 
at  law. 

Florida.  Sanderson  v.  Sander- 
son's  Admrs.,   20   Fla.   292    (1883). 


Maryland.  Baltimore,  etc.,  R. 
Co.  V.  Fitzpatrick,  36  Md.  619 
(1872),   action  at   law. 

Michigan.  How.  Ann,  St.  (2d 
ed.)    §  13,500;    C.   L.    §  10,455. 

Mississippi.  See  Code  1906,  Sec. 
960. 

Pennsylvania.  Heft  v.  McGill,  3 
Pa.  256   (1846). 

Tennessee.  Stephenson  v.  Steph- 
enson, 4  Tenn.  123  (1816). 

West  Virginia.  Fisher  v.  Bell, 
65  W.  Va.  10  (1909);  Blair  v. 
Henderson,  49  W.  Va.  282  (1901); 
but  see  Code  1913,  Sec.  4767. 

But  in  a  few  jurisdictions  the 
infant  and  not  the  next  friend  is 
liable  for  the  costs  of  suit.  Myers 
v.  Rehkopf,  30  111.  App.  209  (1889), 
action  at  law;  Leavitt  v.  Bangor, 
41  Me.  458  (1856),  action  at  law; 
Crandall  v.  Slaid,  11  Met.  (Mass.) 
288  (1846);  compare  Sone  v.  Wins- 
low,  64  Me.  518  (1874). 

The  next  friend  is  entitled  to 
reimbursement  out  of  the  estate 
of  the  infant,  though  the  suit  be 
unsuccessful,  if  he  acted  in  good 
faith  and  with  reasonable  caution. 
Voorhees  v.  Polhemus,  36  N.  J. 
Eq.    456    (1893). 

18.  Waring  v.  Crane,  2  Paige  (N. 
Y.)   79,  21  Am.  Dec.  70  (1830). 

19.  Story's  Eq.  PI.  (10th  ed.) 
Sec.  59. 


62  EQUITY  PRACTICE 

written  authority  to  be  signed  by  the  person  acting  as 
next  friend  must  be  filed  with  the  bill,^*'  or  the  next  friend 
must  be  actually  appointed  by  the  court;  -^  and  the  next 
friend  may  be  required  to  file  a  bond  or  other  security 
with  the  court  -^  to  the  use  and  benefit  of  the  infant, 
before  bringing  suit  in  his  behalf.  In  most  jurisdictions, 
however,  neither  the  consent  of  the  infant  nor  previous 
authority  of  the  court  is  necessary  to  enable  one  to  sue 
in  behalf  of  an  infant,  but  if  it  is  represented  to  the  court 
that  the  suit  is  not  for  the  benefit  of  the  infant,  it  will 
direct  an  inquiry  to  be  made  by  a  master  in  chancery,  and 
if  the  latter  finds  that  it  is  not  for  his  benefit,  the  court 
will  stay  the  proceedings.  So  where  two  suits  are  brought 
by  different  persons  as  next  friend,  an  inquiry  will  be 
directed  and  the  one  which  is  not  for  his  benefit  will  be 
dismissed.-^  So  where  suit  is  instituted  by  next  friend 
without  informing  or  consulting  the  infant 's  father,  who 
has  no  adverse  interest,  and  against  whom  there  is  no 
imputation,  the  father  should  on  application,  though 
made  after  decree,  be  substituted  as  next  friend.^^ 
Although  the  general  rule  is  that  the  next  friend  is  not  a 

20.  In  Maryland  by  statute.  See  necessary  in  Alabama.  Hooks  v. 
Mumma  v.  Brinton,  77  Md.  197  Smith,  18  Ala.  338  (1883);  Bethea 
(1893).  T.  M«Call,  3  Ala.  449   (1841). 

21.  See  How.  Ann.  St.  (2d  ed.)  22.  See  How.  Ann.  St.  (2d  ed.) 
§§13500,  13501;  Michigan  C.  L.  §13502;  Mich.  C  L.  §10457. 
§§  10455,  10456.  It  was  said  in  In  Florida  bond  must  be  filed  in  a 
Haines  v.  Oatman,  2  Doug.  430  suit  at  law  but  not  in  equity. 
(1847),  that  defendant  need  not  Pace  v.  Pace,  19  Fla.  438  (1882). 
answer  unless  the  next  friend  is  23.  Story's  Eq.  PI.  (10th  ed.) 
appointed  by  the  court.  Sec.   60,  citing  Gage  v.   Stafford,   1 

It    has    been    pointed    out    that  W.  Va.  544,  545. 

though  actually  the  court  does  not  24.  Woolf  v.  Pemberton,  6  Ch.  D. 

select    the    next    friend    in    most  ]9;  see  Bernard  v.  Merrill,  91  Me. 

cases,  yet  in  theory  the  court   ap-  358  (1898),  a  suit  at  law  in  which 

points    him    in    all    cases,    and    he  the    court    held    that    a    judgment 

is    subject    to    the    orders    of    the  against    an    infant    plaintiff    suing 

court.     Chudleigh  v.  Chicago,  etc.,  by    her   father    does    not    bar    her 

E.    Co.,    51    HI.    App.    491    (1893);  father     from     suing    for     loss     of 

Deford  v.  State,  30  Md.  179  (1869).  services. 
No    appointment    by    the    court    is 


PARTIES 


63 


party  to  the  suit,  he  has  authority  to  employ  an  attorney 
and  to  carry  the  suit  to  judgment. ^^  If  there  is  no  guard- 
ian to  the  infant,  some  authorities  hold  that  the  next 
friend  may  receipt  for  any  money  recovered  from  the 
defendant  and  enter  a  judgment  at  common  law  as  satis- 
fied ;  -^  but  the  general  rule  is  that  the  next  friend  cannot 
without  authority  from  the  court  comj^romise  the  suit.-' 
§  46.  — Idiots  and  lunatics.  Actions  for  the  benefit  of 
persons  of  unsound  mind  should  be  brought  in  the 
name  of  such  persons,  by  some  next  friend, ^^  or  by  guar- 


25.  Baltimore,  etc.,  R.  Co.  v.  Fitz- 
patrick,  36  Mel.  619  (1872);  Yow- 
rie  V.  Nelson,  1  Tenn.  Ch,  614 
(1874). 

26.  Neil  V.  Spooner,  20  Fla.  38 
(1884),  semble;  Baltimore,  etc.,  R. 
Co.  V.  Fitzpatrick,  36  Md.  619 
(1873);  Wallace  v.  Boston  El.  R. 
Co.,  194  Mass.  328  (1907);  Barker 
V.  Pere  Marquette  R.  Co.,  142 
Mich.  497,  3  L.  R.  A.  (N.  S.)  76 
(1905).  Contra,  Barwiek  v.  Rack- 
ley,  45  Ala.  215  (1871). 

27.  Johnson  v.  McCann,  61  111 
App.  110  (1895);  Barnard  v.  Mer 
rill,  91  Me.  361  (1898);  Tripp  v 
Gifford,  155  Mass.  108  (1891) 
O'Donnell  v.  Broad,  2  Pa.  D.  R 
84,  149  Pa.  24  (1892);  Cady  v 
Roan  Iron  Co.,  105  Tenn.  515 
(1900);  Lawson  v.  Kirchner,  50  W. 
Va.  344  (1D02),  sembJe ;  The  Aetna, 
1  Ware  478,  F.  C.  4542  (D.  C. 
1838). 

The  authority  of  a  guardian  ad 
lHem  or  next  friend  of  an  infant 
defendant  to  represent  him  in  the 
conduct  of  a  cause,  of  course  ex- 
pires with  the  minority  of  the  in- 
fant. Lang  V.  Belloff,  53  N.  J. 
Eq.  298   (1895). 

28.  Alabama.  Code  1907,  Sec. 
3088;  West  v.  West,  90  Ala.  458 
(1890). 


Delaware.  Penington  v.  Thomp- 
son, 5  Del.  Ch.  328,  361,  affirmed 
6  Houst.  225,  229  (1880). 

Illinois.  Isle  v.  Cranby,  199  111. 
39  (1902);  Ryder  v.  Topping,  15 
111.  App.  216  (1884). 

Maryland.  Mumma  v.  Brinton, 
77  Md.  197   (1893),  semble. 

Massachusetts.  Gray  v.  Parke, 
155  Mass.  433   (1892). 

Mississippi.  Gillespie  v.  Hauen- 
stein,    72   Miss.    838    (1895). 

Michigan.  How.  Ann.  St.  (2d 
ed.)   §  11,574;  C.  L.  §8718. 

New  Jersey.  Collins  v.  Toppin, 
63  N.  J.  Eq.  381  (1902);  Palmer 
V.  Sinnickson,  59  N.  J.  E.  530 
(1900);  Norcom  v.  Rogers,  16  N. 
J.  E.  484   (1864). 

Tennessee.  Parson  v.  Kinzer,  3 
Lea  (Tenn.)  342,  346  (1879). 

Virginia.  Bird's  Committee  v. 
Bird,  21  Grat.   (Va.)   712   (1872). 

Insane  persons  not  under  guard- 
ianship may  prosecute  simply  \>y 
attorney,  if  no  special  reason  be 
shown  to  the  contrary.  McKenna 
V.  Garvey,  191  Mass.  96  (1906); 
McDaniel  v.  McCoy,  68  Mich.  332 
(1888);  Rankin  v.  Warner,  2  Lea 
(Tenn.)   302   (1879). 

In  some  of  the  states  there  is 
a  distinction  to  the  effect  that  suit 
should   be  by   next   friend   only   or 


64 


EQUITY  PRACTICE 


dian,2^  conser\'ator  ^^  or  committee  ^^  duly  appointed.  As 
in  the  case  of  infants,  the  next  friend  is  at  least  in  theory 


chiefly  when  no  guardian  or  con- 
servator has  been  appointed,  or 
when  the  ward 's  interests  are  ad- 
verse to  the  guardian's.  Alabama, 
Code  1907,  Sec.  3088;  West  v.  West, 
90  Ala.  458  (1890);  Isle  v.  Cranby, 
199  111.  39  (1902);  Bird's  Commit- 
tee V.  Bird,  21  Gratt.  (Va.)  712 
(1872). 

In  Maine  under  the  provisions 
of  R.  S.  Ch.  69,  Sees.  14,  27,  per- 
sons of  unsound  mind  sue  by  their 
regular  guardian  unless  a  next 
friend  is  appointed  for  the  pur- 
pose, which  appointment  the  court 
has  power  to  make  although  there 
is  a  general  guardian. 

In  the  Federal  courts,  proceed- 
ings in  which  insane  persons  are 
interested  as  plaintiffs  are  sub- 
stantially the  same  as  those  in 
which  minors  are  plaintiffs.  See 
Federal  equity  rule  70  and  Fed- 
eral cases  cited  in  notes  to  §  45, 
ante,  p.  60.  The  citizenship  of  the 
insane  person,  not  of  his  next 
friend,  is  considered  for  purposes 
of  giving  the  Federal  court  juris- 
diction. Wiggin  v.  Bethune,  29 
Fed.  51  (C.  C.  1886).  A  plaintiff 
may  bring  his  bill  in  his  own 
name,  though  the  defendant  claims 
he  is  non  compos,  if  he  has  not 
been  adjudged  non  compos,  on  in- 
quisition, or  if  no  committee  has 
been  appointed.  Dudgeon  v.  Wat- 
son, 23  Fed.  161   (C.  C.  1885). 

29.  Alabama.  Code  1907,  Sec. 
3088;  West  v.  West,  90  Ala.  458 
(1890). 

Florida.  G.  S.  second  div.  Title 
1,  Article  1. 

Maine.  E.  S.  Ch.  69,  Sec.  14; 
Ch.  84,  Sec.  52. 


Maryland.  Mumma  v.  Brinton, 
77  Md.  197  (1893),  semble. 

Massachusetts.  R.  L.  Ch.  145, 
Sec.  25;  Ch.  172,  Sec.  19;  Lombard 
V,  Morse,  155  Mass.  136  (1891). 

Michigan.  How.  Ann.  St.  (2d 
ed.)    §  11,574;  C.  L.  §  8718. 

Mississippi.  Code  of  1906,  Sec. 
2438;  Gillespie  v.  Hauenstein,  72 
Miss.   838    (1895). 

New  Hampshire.  P.  S.  Ch.  177, 
Sec.  1;  Lang  v.  Whidden,  2  N.  H. 
435   (1822). 

New  Jersey.  Palmer  v.  Sinnick- 
son,  59  N.  J.  E.  530  (1900);  Krochl 
V.  Taylor,  69  N.  J.  E.  525   (1905). 

Bhode  Island.  Taylor  v.  Supe- 
rior Court,  30   R.   L   200    (1910). 

Tennessee.     Code,  Sec.  4929. 

Vermont.  Lincoln  v.  Thrall,  34 
Yt.   110   (1861). 

In  a  few  states,  suit  is  directly 
in  the  name  of  the  guardian,  con- 
servator or  committee.  Covington 
V.  Neftzger,  140  111.  608,  33  Am. 
St.  Rep.  261  (1892);  Equitable 
Trust  Co.  V.  Garis,  190  Pa.  544,  70 
Am.  St.  Rep.  644  (1899);  Bird's 
Committee  v.  Bird,  21  Gratt.  (Va.) 
712  (1872).  See  also  McClun  v. 
McClun,  176  111.  376   (1898). 

30.  Illinois.  J.  &  A.  H  885;  R.  S., 
Ch.  22,  Sec.  5;  Covington  v.  Neftz- 
ger,  140  111.  608,  33  A.  S.  R.  261 
(1892).  Compare  Isle  v.  Cranby, 
199  111.  39  (1902).  Suit  should  be 
directly  in  the  name  of  the  con- 
servator, according  to  the  two  pre- 
ceding Illinois  cases. 

31.  Pa.  P.  L.,  Ch.  589,  Sec.  20; 
Arnold  "v.  Townsend,  14  Phila. 
216  (1880);  Bird's  Committee  v. 
Bird,  21  Gratt.    (Va.)    712   (1872); 


PARTIES 


65 


appointed  by  the  court ;  ^-  and  the  guardian  or  next  friend 
who  initiates  the  suit  is  not  liable  for  the  costs  of  suit,^^ 
except  where  he  has  sued  wrongfully  and  without  justifi- 
cation.^^ A  bill  which  appears  on  its  face  to  be  brought 
for  a  lunatic  without  guardian  or  next  friend  is  demur- 
rable.^'^ 

§  47.  Possible  parties  defendant — The  state.  In  Eng- 
land the  king  and  queen,  although  they  may  sue,  are  not 
liable  to  be  sued,  and  in  America  a  similar  exemption 
generally  belongs  to  the  government  or  state.^^    But  in 


Johnson  v.  Chapman,  43  W.  Va. 
639  (1897).  The  suit  is  directly 
in  the  name  of  the  commit- 
tee, or  in  the  name  of  the  commit- 
tee jointly  with  the  insane  person, 
upon  the  authority  of  the  above 
cases. 

32.  Palmer  v.  Sinnickson,  59  N. 
J.  E.  530  (1900);  Bird's  Commit- 
tee V.  Bird,  21  Gratt.  (Va.)  712 
(1872). 

33.  Illinois.  J.  &  A.  11886;  R.  S. 
Ch.  22,  Sec.  6. 

Maine.     E.  S.  Ch.  84,  Sec.  52. 

Massachusetts.  R.  L.  Ch.  145, 
Sec.  24. 

New  Jersey.  Voorhees  v.  Pol- 
hemus,  36  N.  J.  E.  456  (1883). 

Contra,  Alabama.  Hughes  v. 
Hughes,  44  Ala.  698  (1870),  divorce 
bill. 

34.  Sikes  v.  Crissman,  35  Mich. 
96  (1876);  Drinker's  Estate,  3  Pa. 
C.  C.  489   (1887). 

35.  Palmer  v.  Sinnickson,  59  N.  J. 
E.  530  (1900).  So  of  a  bill  brought 
directly  in  the  name  of  the  guard- 
ian in  a  jurisdiction  where  such 
procedure  is  improper.  West  v. 
West,  90  Ala.  458   (1890). 

36.  Alabama.  The  Constitution 
of  1901,  Sec.  14,  provides  that  the 
state  shall  never  be  made  a  de- 
fendant either  at  law  or  in  equity. 

Whitehouse  E.  P.  Vol.  I — 5 


Prior  to  the  Constitution  of  1875, 
however,  the  state  could  be  sued 
in  certain  cases.  See  Constitution 
of  1868,  Sec.  16.  The  Constitu- 
tional provision  prevents  suits 
against  state  institutions.  Ala. 
Girls'  Ind.  Sch.  v.  Adier,  144  Ala. 
555  (1905);  Comer  v.  Bankhead, 
70  Ala.  493   (1881). 

Florida.  The  legislature  may  by 
the  constitution  provide  for  bring- 
ing suits  against  the  state,  but  in 
the  absence  of  such  statute,  no 
such  suit  can  be  maintained. 
Blozham  v.  R.  Co.,  35  Fla.  625 
(1895).  A  suit  against  an  individ- 
ual officer  to  enjoin  his  illegal  acts 
is  not  a  suit  against  the  state. 
Croom  V.  Pennington,  59  Fla.  473 
(1910). 

Illinois.  The  constitution  pro- 
vides that  the  state  shall  not  be 
made  defendant  in  any  court  of 
law  or  equity.  Under  this  section 
it  has  been  decided  that  the  at- 
torney general  cannot  waive  the 
state 's  immunity.  People  v.  Sani- 
tary District,  210  HI.  171  (1904). 
And  that  mandamus  will  not  lie 
against  the  commissioners  of  the 
state  penitentiary  to  perform  a 
contract  for  contract  labor.  Peo- 
ple V.  Dulaney,  96  111.  503  (1880). 
But  a  state  officer  may  be  enjoined 


66  EQUITY  PRACTICE 

cases  where  the  government  has  an  interest  in  the  subject 


from  collecting  an  illegal  tax.  Ger- 
man Alliance,  etc.,  Co.  v.  Van 
Cleve,   191   111.   410    (1901). 

Maine.  No  action  can  be 
brought  against  the  state.  Wes- 
ton V.  Sane,  53  Maine  372   (1865). 

Maryland.  State  v.  Baltimore, 
etc.,  E.  Co.,  34  Md.  344  (1871). 

Massachusetts.  Hodgdon  v. 
Haverhill,  193  Mass.  406  (1907); 
Nash  V.  Commonwealth,  174  Mass. 
335,  338    (1899). 

The  consent  of  the  common- 
wealth to  be  sued  cannot  be  in- 
ferred from  an  act  of  the  legis- 
lature not  expressing  it  in  terms. 
Murdock,  etc.,  Co.  v.  Common- 
wealth, 152  Mass.  28,  8  L.  R.  A. 
399  (1890).  Compare  Saranac,  etc., 
Co.  V.  Roberts,  69  Fed.  521  (C.  C. 
1895)  where  the  inference  was  too 
plain  to  be  escaped.  Where  the 
legislature  allows  certain  sorts  of 
suit  to  be  brought  aglainst  the 
state,  the  permission  will  not  be 
extended  by  implication.  Milford 
V.  Com.,  144  Mass.  64  (1887).  The 
suit  must  follow  the  statutory  re- 
quirements in  all  details.  Flagg 
V.  Bradford,  181  Mass.  315  (1902). 

Michigan.  The  state  cannot  be 
compelled  to  respond  in  any  court. 
Aplin  V.  Van  Tassel,  73  Mich.  28 
(1888). 

Mississippi.  Suits  may  be 
brought  against  the  state  in  law 
and  in  equity  upon  certain  claims. 
Farish  v.  State,  5  Miss.  170  (1839). 
But  the  constitutional  and  statu- 
tory privilege  of  suing  the  state 
is  strictly  limited.  Hall  v.  State, 
79  Miss.  38  (1901);  Raymond  v. 
State,  54  Miss.  562,  28  A.  R.  382 
(1877).  See  Code  of  1906,  Sec. 
4800. 


New  Jersey.  The  state  cannot 
be  sued  in  its  own  courts  without 
its  consent.  American  Dock,  etc., 
Co.  v.  Trustees,  32  N.  J.  E.  428 
(1880);  Lodor  v.  Baker,  39  N.  J.  L. 
49   (1876). 

Pennsylvania.  The  common- 
wealth cannot  be  made  a  defend- 
ant in  a  suit  in  equity.  William- 
port,  etc.,  R.  Co.  V.  Comm.,  33  Pa. 
288   (1859). 

Tennessee.  The  state  cannot  be 
sued  in  its  own  courts  without  its 
consent.  State  v.  Bank,  62  Tenn. 
395  (1874);  General  Oil  Co.  v. 
Crain,  117  Tenn.  82,  121  Am.  St. 
Rep.  967  (1906).  Nor  in  the  courts 
of  another  state.  Moore  v.  Tate, 
87  Tenn.  725,  10  Am.  St.  Rep.  712 
(1889);  Tappan  v.  Western,  etc., 
R.  Co.,  3  Lea  (Tenn.)  106  (1879). 
But  by  the  constitution,  the  legis- 
lature may  provide  for  suits 
against  the  state.  North  British, 
etc.,  Co.  V.  Craig,  106  Tenn.  621 
(1900).  A  state  officer  may  be  en- 
joined from  illegal  action.  Busire 
V.  McMillan,  117  Tenn.  115  (1906). 

Virginia.  The  state  cannot  be 
sued  except  with  its  permission; 
neither  can  suit  be  maintained 
against  the  officers  or  agents  of 
the  state  if  in  effect  it  is  against 
the  state  itself.  Board  of  Public 
Works  V.  Gaunt,  76  Va.  455  (1882); 
Cornwall  v.  Comm.,  82  Va.  644,  3 
A.  S.  R.  121  (1886).  A  suit  to 
enjoin  the  commissioner  of  agri- 
culture from  the  performance  of 
illegal  official  acts  is  not  a  suit 
against  the  state,  and  is  within  the 
jurisdiction  of  the  chancery  court. 
Blanton  v.  Southern  Fertilizing 
Co.,  77  Va.  335  (1883).  The  stat- 
utory mode  of  suing  the  state  must 


PARTIES 


67 


as  a  matter  of  public  trust,  the  attorney  general  may  be 
a  defendant.^' 

§48.  — Married  women — Infants,  idiots  and  lunatics. 
Bodies  politic  and  corporate,  and  persons  of  full  age  not 


be  followed  in  every  detail.  Dum- 
ington  V.  Ford,  80  Va.  177  (1885); 
Commonwealth  v.  Dunlop,  89  Va. 
431    (1892). 

West  Virginia.  By  Const.  Art. 
6,  Sec.  35,  the  state  can  be  sued 
neither  at  law  or  in  equity.  A 
suit  against  an  officer  acting  or 
threatening  to  act  under  an  un- 
constitutional statute  is  a  suit 
against  him  as  an  individual,  un- 
less a  contract  right,  liability  or 
property  of  the  state  is  involved. 
Coal,  etc.,  E.  Co.  v.  Conley,  67  W. 
Va.  129  (1910).  See  Blue  Jacket, 
etc.,  Co.  V.  Scherr,  50  W.  Va.  533 
(1901). 

United  States.  Except  in  the 
statutory  cases  which  the  court  of 
claims  has  been  created  to  hear, 
the  United  States  cannot  be  sued, 
nor  can  its  officers  be  sued  in  re- 
spect to  the  property  of  the  United 
States,  nor  proceedings  be  brought 
against  its  property.  Stanley  v. 
Schwalby,  162  U.  S.  255,  269,  40 
L.  ed.  960,  965  (1896);  Belknap  v. 
Schild,  161  U.  S.  10,  16,  40  L.  ed. 
599,  601  (1896);  United  States  v. 
Lee,  106  U.  S.  196,  226,  27  L.  ed. 
171,  183  (1882);  The  Siren,  7  Wall. 
152,  154,  19  L.  ed.  129,  130  (1868). 
Statutes  permitting  suits  in  the 
court  of  claims  and  similar  tribu- 
nals are  interpreted  strictly 
against  the  right  of  suit.  Price  v. 
U.  S.,  174  U.  S.  373,  43  L.  ed. 
1011  (1899);  Austin  v.  U.  S.,  155 
U.  S.  416,  430,  39  L.  ed.  206,  211 
(1894);  Haycraft  v.  U.  S.,  22  Wall. 
81,  92,  22  L.  ed.  718,  740    (1874); 


Nichols  V.  U.  S.,  7  Wall.  122,  19  L. 
ed.  125  (1868).  No  state  law  can 
make  the  Federal  government  lia- 
ble to  suit.  Carr  v.  U.  S.,  98  U.  S. 
433,  25  L.  ed.  209  (1878). 

By  the  constitution,  as  amended, 
no  state  is  liable  to  be  sued  in  the 
Federal  courts  by  citizens  of  an- 
other state,  or  of  a  foreign  state. 
Amendment  XL  This  extends  even 
to  a  suit  against  a  plaintiff's  own 
state  upon  a  claim  founded  on  the 
Federal  constitution.  Hans  v. 
Louisiana,  134  U.  S.  1,  33  L.  ed. 
842  (1889).  But  a  state  may  be 
sued  in  the  Federal  courts  by  an- 
other state,  or  by  a  foreign  state. 
South  Dakota  v.  North  Carolina, 
192  U.  S.  286,  315,  48  L.  ed.  448, 
459  (1904);  Ehode  Island  v.  Mas- 
sachusetts, 12  Pet.  731,  9  L.  ed. 
1263  (1838);  compare  New  Hamp- 
shire V.  Louisiana,  108  U.  S.  76, 
27  L.  ed.  656  (1883).  There  have 
been  many  cases  in  the  Federal 
courts  on  the  point  of  when  a  state 
is  actually  a  party,  though  only  an 
officer  be  named. 

37.  Attorney  General  v.  New- 
berry Library,  150  HI.  229,  aff.  51 
111.  App.  166  (1893);  Newberry  v. 
Blatchford,  106  111.  584  (1883); 
Burbank  v.  Burbank,  152  Mass. 
254  (1890);  Jackson  v.  Phillips,  14 
Allen  (Mass.)  539  (1867);  Orford 
Society  v.  Orford,  55  N.  H.  463 
(1875);  Princeton  University  v. 
Wilson,  78  N.  J.  E.  1  (1910);  re 
St.  Michael's  Church,  76  N.  J.  E. 
524  (1909);  Larkin  v.  Wikoff,  75 
N.  J.  E.  462  (1909). 


68 


EQUITY  PRACTICE 


laboring  under  any  disability,  defend  a  suit  by  themselves. 
Infants,  idiots  and  lunatics  are  as  incapable  of  defending  a 
suit  alone  as  tliey  are  of  prosecuting  a  suit  alone.  In  most 
jurisdictions  under  modern  statutes,  married  women  are 
classed  as  persons  not  under  any  disability  in  respect  to 
being  sued;^-^  although  in  some  jurisdictions  they  cannot 
be  sued  as  sole  parties  defendant.^^ 

Infants,  idiots  and  lunatics  although  named  in  a  bill  as 
parties  defendant,  conduct  their  actual  defense  through 


38.  Alabama.  Code  1907,  Sees. 
4486,  4493;  Kimbrell  v.  Eogers,  90 
Ala.  339  (1889);  Marshall  v.  Mar- 
shall, 86  Ala.  383  (1888);  Ramage 
V.  Towles,  85  Ala.  588  (1888). 

Delaware.  Black  v.  Clements,  2 
Pen.  499   (1900). 

Illinois.  Haight  v.  McVeagh,  69 
111.  624  (1873);  Halley  v.  Ball,  66 
111.  250  (1872);  Cookson  v.  Toole, 
59  111.  515  (1871). 

Maine.    See  R.  S.  Ch.  63,  Sec.  5. 

Maryland.  Worthington  v. 
Cooke,  52  Md.  297  (1879),  action 
at  law  under  statute  relating  to 
covenant  running  with  the  land. 

Massachusetts.  McCarty  v.  De- 
Best,  120  Mass.  89  (1876);  Fiske 
V.  Mcintosh  101  Mass.  66  (1869); 
compare  Heburn  v.  Warner,  112 
Mass.  271,  17  A.  E.  86  (1873). 

Michigan.  Root  v.  Root,  164 
Mich.  638  (1911);  Sanborn  v.  San- 
born, 104  Mich.  180  (1895);  Leon- 
ard V.  Pope,  27  Mich.  145  (1873); 
Berger  v.  Jacobs,  21  Mich.  215 
(1870). 

New  Hampshire.  Whidden  v. 
Coleman,  47  N.  H.  297  (1867); 
Gordon  v.  Cummings,  43  N.  H.  134 
(1861). 

Pennsylvania.  Goldbeck  v. 
Brady,  4  Pa.  Co.  Ct.  R.  169  (1887); 
Littster  v.  Littster,  151  Pa.  474 
(1892). 


Rhode  Island.  Merriam  v.  White, 
18  R.  I.  727  (1894). 

Vermont.  Buck  v.  Troy,  etc., 
Co.,  76  Vt.  75  (1904);  Swerdferger 
V.  Hopkins,  67  Vt.  136  (1894); 
Gustin  V.  Carpenter,  51  Vt.  585 
(1879). 

Virginia.  Richmond,  etc.,  Co.  v. 
Bowles,  92  Va.  738  (1896);  Nor- 
folk, etc.,  R.  R.  Co.  V.  Dougherty, 
92  Va.  372   (1895). 

West  Virginia.  Rogers  v.  Lynch, 
44  W.  Va.  94  (1897). 

39.  Florida.  Prentice  v.  Paisley, 
25  Fla.  927,  7  L.  R.  A.  640  (1890), 
wife's  trustees  held  necessary  par- 
ties in  an  action  to  charge  her 
separate  estate. 

Maryland.  Clark  v.  Boardman, 
89  Md.  428  (1899),  bill  in  equity, 
mechanics'  lien;  no  express  stat- 
ute relating  to  this  kind  of  action, 
as  there  was  in  Worthington  v. 
Cooke,  52  Md.  297  (1879),  foot- 
note 38,  "ayite. 

Tennessee.  See  Hicks  (Tenn.) 
Ch.  Pr.  (2d  ed.),  p.  11;  Gibson's 
(Tenn.)  Suits  in  Chancery,  (2nd 
ed.)    Sec.  88. 

United  States.  O'Hara  v.  Mc- 
Connell,  93  U.  S.  150,  23  L.  ed. 
840  (1876);  Taylor  v.  Holmes,  14 
Fed.  498  (C.  C.  1882). 


PARTIES 


69 


a  guardian, — usually  a  guardian  ad  litem  *^  appointed  by 
the  court  on  the  application  of  a  friend,  or  of  the  opposite 
party, — although  occasionally  by  the  general  guardian, 
conservator  or  committee,  without  his  special  appoint- 
ment as  guardian  ad  litem,  at  least  where  his  interest  is 
not  adverse  to  his  ward's.^^    The  guardian  in  such  case  is 


40.  Alabama.  By  Code  of  1907, 
Sec.  3101,  insane  persons  who  have 
no  legal  guardian,  defend  by  guard- 
ian ad  litem. 

Delaware.  See  E.  C.  Ch.  78, 
Sees.   1,   2;   Equity  Kule   16. 

Florida.  MeDermott  v.  Thomp- 
son, 29  Fla.  299   (1892). 

Illinois.  See  J.  &  A.  H  886;  E.  S. 
Ch.  22,  Sec.  6;  Thurston  v.  Tubbs, 
250  III.  540  (1900)  J  Hickhenboth- 
am  V.  Blackledge,  54  111.  316 
(1870). 

Maine.  Stinson  v.  Pickering,  70 
Me.  273   (1879). 

Maryland.  Code,  Art.  16,  Sec. 
137;  Bush  v.  Linthicum,  59  Md. 
344   (1882). 

Massachusetts.  See  E.  L.  Ch. 
145,  Sees.  23,  24,  25;  Mansur  v. 
Pratt,  101  Mass.  60   (1869). 

Michigan.  See  How.  Ann.  St. 
(2d  ed.)  §  13506;  C.  L.  Ch.  288, 
Sec.  8  (10461);  How.  Ann.  St.  (2d 
ed.)  §12777;  C.  L.  Ch.  281,  Sec.  21 
(10133);  Bearinger  v.  Pelton,  78 
Mich.   109    (1889). 

Mississippi.  Burrus  v.  Burrus, 
56  Miss.  92  (1878);  Wells  v.  Smith, 
44  Miss.  296  (1870). 

New  Hampshire.  Dow  v.  Jew- 
ell, 21  N.  H.  470,  487  (1850);  see 
P.  S.  Ch.  177,  Sec.  1. 

New  Jersey.  Lang  v.  Belloff,  53 
N.  J.  E.  298  (1895);  Pierson  v. 
Hitchner,  25  N.  J.  E.  130  (1874). 

Pennsylvania.  See  P.  L.  601, 
Sec.  45;  553,  See.  1;  Davis  v.  Davis, 


25  Pa.  C.  C.  495,  10  Kulp  326 
(1901). 

Tennessee.  Kerbaugh  v.  Vance, 
5  Lea   (Tenn.)   113   (1880). 

Virginia.  Hunton  v.  Bland,  81 
Va.  598  (1886).  See  Code,  Sees. 
3255,  2618.  Preference  in  the  ap- 
pointment is  to  be  given  "some 
discreet  and  competent  attorney  at 
law. ' ' 

West  Virginia.  See  Code  1913, 
Sec.  4767;  Alexander  v.  Davis,  42 
W.  Va.  465  (1896). 

A  guardian  ad  litem  may  file  a 
cross  bill  and  appeal  from  a  de- 
cree dismissing  the  same.  Sprague 
V.  Beaver,  45  111.  App.  17  (1878). 

The  authority  of  the  guardian 
ad  litem  (or  next  friend)  expires 
with  the  minority  of  an  infant. 
Lang  V,  Belloff,  53  N.  J.  E.  298 
(1895). 

An  attorney  not  appointed 
guardian  ad  litem  has  no  author- 
ity to  conduct  a  defence  for  an 
infant  or  insane  defendant.  Lee 
V  Jackson,  30  Miss.  592  (1856); 
Somers  v.  Rogers,  26  Vt.  585 
(1854). 

41.  Alabama.  For  any  defendant 
under  proper  guardianship,  there 
is  no  statutory  authority  to  ap- 
point a  guardian  ad  litem,  and  it 
therefore  seems  that  the  court 
lacks  authority  to  appoint  one, 
and  that  the  general  guardian,  if 
not  adversely  interested,  should 
act.      Ex     parte     Northington,     37 


70 


EQUITY  PRACTICE 


entitled  to  reasonable  compensation  and  is  not  liable  for 
costs.^2  If  there  is  no  guardian  or  guardian  ad  litem  the 
bill  will  be  dismissed.'*^  Guardians,  however,  are  not 
regarded  as  parties  proper  to  the  suit,  they  only  appear 
for  and  represent  their  ward.^^    So  in  a  bill  affecting  an 


Ala.  400  (1861);  Walker  v.  Clay, 
21  Ala.  797  (1852).  See  Code  1907, 
Sec.  3101.  In  the  case  of  infants, 
the  statute  expressly  gives  general 
guardians  the  duty  of  defence,  if 
not  adversely  interested.  Code 
1907,  Sees.  4482-3-4. 

Delaware.     Equity  Eule  16. 

Illinois.  Scott  v.  Bassett,  194 
111.  607  (1902),  lunatic;  Nimmons 
v.  Stryker,  132  111.  App.  414  (1907), 
same. 

Maryland.  Code,  Art.  16,  Sec. 
137. 

Massachusetts.  R.  L.  Ch.  145, 
Sees.   23,   25,   infants. 

Michigan.  How.  Ann.  St.  (2d 
ed.)  §  12777;  C.  L.  Ch.  281,  Sec.  21 
(10133),  lunatic. 

Mississippi.  Code,  Ch.  115,  Sees. 
3929,   3930. 

Pennsylvania.  P.  L.  601,  See. 
45;   553,  Sec.  1. 

Tennessee.     Code,  Sec.  6182. 

Virginia.  Howard  v.  Lands- 
berg,  108  Va.  161  (1908),  insane 
persons. 

A  special  guardian  ad  litem  must 
always  be  appointed  where  the  in- 
terests of  the  general  guardian  are 
adverse  to  the  ward's.  Phillips  v. 
Phillips,  185  111.  629  (1900);  Stin- 
son  V.  Pickering,  70  Me.  273 
(1879);  Bicknell  v.  Bicknell,  111 
Mass.  265   (1873). 

42.  Alabama.  Ward  v.  Mat- 
thews, 122  Ala.  188   (1898). 

lUinois.  See  J.  &  A.  H  886;  R. 
S.  Ch.  22,  Sec.  6. 

Maine.    See  R.  S.  Ch.  84,  See.  52. 


Massachusetts.  See  R.  L.  Ch. 
145,  Sec.  24. 

Michigan.  How.  Ann.  St.  (2d 
ed.)  §  10465;  C.  L.  Ch.  288,  Sec.  12 
(10465). 

Mississippi.  See  Code,  Ch.  61, 
See.   2439. 

Tennessee.  Kerbaugh  v.  Vance, 
5  Lea   (Tenn.)   113   (1880). 

Virginia.     See  Code,  Sec.  3255. 

West  Virginia.  See  Code  1913, 
Sec.   4767. 

The  guardian  ad  litem  may  of 
course  employ  counsel  where  the 
infant's  interests  so  require.  Col- 
gate 's  Exor.  V.  Colgate,  23  N.  J.  E. 
372   (1873). 

43.  Marston  v.  Humphrey,  24  Me. 
513   (1845). 

So  in  a  bill  in  equity  on  report 
to  the  law  court,  where  it  ap- 
peared that  two  of  the  defendants 
were  minors,  the  report  was  dis- 
charged, since  the  decree  could  not 
bind  them.  Tolman  v.  Tolman,  85 
Me.   317    (1893). 

44.  Sanford  v.  Phillips,  68  Me. 
432  (1878);  Taylor  v.  Lovering, 
171  Mass.  303  (1898). 

Accordingly  a  guardian  ad  litem 
cannot  bind  the  ward  by  submit- 
ting the  ease  to  arbitration.  Fort 
v.  Battle,  21  Miss.  133   (1848). 

But  a  conservator  or  other  guard- 
ian of  a  lunatic  should  also  be 
joined  as  a  party.  Scott  v.  Bas- 
sett, 194  111.  607  (1902);  Potts  v. 
Hines,  57  Miss.  735  (1880);  An- 
drews V.  O'Reilly,  22  R.  I.  369 
(1901). 


PARTIES  71 

infant's  title  to  real  estate,  making  the  guardian  alone 
a  party  is  not  sufficient,  tlie  infant  himself  must  be  made 
a  party  to  the  bill.^^  So  where  a  bill  in  equity  is  brought 
to  enforce  a  trust,  the  trustee  though  a  minor  must  be 
made  a  party.  It  cannot  be  maintained  against  the  guard- 
ian alone.^*^ 

§  49.  Fundamental  principles  governing  joinder  of  par- 
ties. Having  ascertained  what  persons  have  the  capacity 
to  sue  and  be  sued  in  equity  at  all,  we  will  next  examine 
the  rules  for  determining  those  whom  it  is  proper  and 
necessary  to  join  as  parties  to  a  given  suit.  These  rules 
we  shall  here  consider  from  the  point  of  view  of  the  plain- 
tiff bringing  the  bill,  and  desiring  to  include  all  persons 
who  ought  to  be  parties  and  to  know  the  effect  on  his  suit 
of  omitting  any  of  these.  This  is  the  problem  before  the 
plaintiff  who  would  obviate  successful  objections  for  non- 
joinder. The  converse  questions  which  arise  when  too 
many  parties  are  joined,  i.  e.,  the  problems  presented  by 
improper  parties,  and  by  misjoinder  involving  often  mul- 
tifariousness, will  be  discussed  in  a  later  portion  of  this 
chapter. 

From  this  jooint  of  view,  then,  there  are  two  funda- 
mental principles  underlying  the  determination  of  the 
parties  to  a  suit  in  equity.  The  first  is  the  universal  one 
which  obtains  in  all  courts  of  law,  that  no  man's  rights 
shall  be  decided  in  a  court  of  justice  unless  he  is  either 
present  in  person  or  has  a  full  opportunity  to  appear  and 
vindicate  his  rights.  The  second  is  that  when  a  decision 
is  rendered  in  regard  to  any  subject  matter  the  rights  of 

45.  Terrell  v.  Waymouth,  32  Fla.  46.  Wakefield  v.  Marr,  65  Me.  341 

255    (1893);    Tucker    v.    Bean,    65  (1876);  McClellan  v.  McClellan,  65 

^le.  352   (1876);  Frazier  v.  Pankey,  Me.  500   (1876). 

31   Tenn.   75    (1851).  So,  too,  an  infant  cestui  que  tiust 

See  §  165,  post,  p.  325,  and  §  179,  ^^^^  ^^  j^^^-jg  ^  ^^^^^^  ^^  ^  bill  af- 

Vost,  p.  344,  as  to  whether  infants  ^^^^j^^  ^^^  ^^^^^  property.    Skiles 

or  insane  persons  must  be  actually  ^^_  ^^-.^         n  m.  533  (igSQ). 
served  with   process,   and   whether 
a  general  appearance   in   their  be- 
half waives  lack  of  service. 


72 


EQUITY  PRACTICE 


all  persons  directly  concerned  in  the  decision  shall  be  pro- 
vided for  so  far  as  possible,  to  the  end  that  justice  may  be 
done  and  future  litigation  prevented. 

§  50,  — General  rule.  From  these  two  fundamental 
principles  has  been  evolved  the  general  rule  governing 
the  joinder  of  parties  which  has  been  laid  down  from  the 
earliest  times  to  the  present  day.  This  rule  is  frequently 
stated  as  follows:  all  persons  materially  interested 
either  legally  or  beneficially  in  the  subject  matter  of  a  suit 
should  be  made  parties  to  it,  and  if  they  will  not  join  as 
plaintiffs,  then  they  should  be  made  defendants."*^    This 


47.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  72. 

Alabama.  Mobile  Land,  etc., 
Co.  V.  Gass,  129  Ala.  214  (1900); 
Perkins  v.  Brierfield,  etc.,  Co.,  77 
Ala.  403   (1884). 

Delaware.  Mayo  v.  Addicks,  7 
Del.  Ch.  56  (1893);  Farmers',  etc., 
Bank  v.  Polk,  I  Del.  Ch.  167 
(1821). 

Florida.  Sarasota  lee,  etc.,  Co. 
V.  Lyle  &  Co.,  53  Fla.  1069  (1907); 
Florida  Land  Koek  Phosphate  Co. 
V.  Anderson,  50  Fla.  501   (1905). 

Illinois.  Heffron  v.  Gage,  149 
111.  182  (1894);  Green  v.  Grant, 
143  111.  61  (1892);  Dorman  v. 
Brereton,  140  111.  153   (1892). 

Maine.  Strout  v.  Lord,  103  Me. 
410  (1909);  Brown  v.  Lawton,  87 
Me.  86  (1894);  Welch  v.  Stearns, 
69  Me.   193    (1879). 

Maryland.  Bowen  v.  Gent,  54 
Md.   555    (1880). 

Massachusetts.  Lawrence  v. 
Smith,  201  Mass.  214  (1909);  Cas- 
sidy  V.  Shimmin,  122  Mass.  406 
(1877). 

Michigan.  Watson  v.  Lion 
Brewing  Co.,  61  Mich.  595   (1886). 

Mississippi.  McPike  v.  Wells, 
54  Miss.   136   (1876). 


New  Hampshire.  Page  v.  Whid- 
den,  59  N.  H.  507,  509  (1880); 
Bell  V.  Woodward,  48  N.  H.  437, 
446  (1869);  Burnham  v.  Kempton, 
37  N.  H.  485   (1859), 

New  Jersey.  Wilson  v.  East  Jer- 
sey Water  Co.,  78  N.  J.  E.  329 
(1911);  Fletcher  v.  Ng^^rt  Tel. 
Co.,  55  N.  J.  E.  47  (1896). 

Pennsylvania.  Phila.  v.  Eiver 
Front  E.  Co.,  133  Pa.  134  (1890); 
Alexander's  Appeal,  20  W.  N.  C. 
283  (1887);  Lehigh  Coal,  etc.,  Co.'s 
Appeal,  88  Pa.  499   (1879). 

Bhode  Island.  Burrill  v.  Garst, 
19  E.  L  38    (1895). 

Tennessee.  Brown  v.  Brown,  86 
Tenn.  277,  311  (1887);  Davis  v. 
Eeaves,  7  Lea  585  (1881);  Maloney 
V.  Johnson,  2  Shan.  Cas.  446  (1877). 

Vermont.  Dewey  v.  St.  Albans 
Trust  Co.,  60  Vt.  1   (1887). 

Virginia.  Stovall  v.  Border 
Grange  Bank,  78  Va.  188  (1883). 

West  Virginia.  Beckworth  v. 
Laing,  66  W.  Va.  246  (1909);  How- 
ard V.  Stephenson,  33  W.  Va.  116 
(1889);  Norris  v.  Bean,  17  W.  Va. 
655    (1881). 

United  States.  McArthur  v. 
Scott,  113  U.  S.  340,  28  L.  ed.  1015 
(1885);    Snelling    v,    Eichard,    166 


PARTIES  73 

statement  of  the  rule,  however,  is  not  wholly  satisfactory 
and  requires  explanation  and  analysis. 

§  51.  Material  interest.  In  the  first  place  it  may  be 
said  that  any  general  rule  purporting  to  give  the  princi- 
ples governing  the  joinder  of  parties  should  be  compre- 
hensive enough  to  include  every  phase  of  the  question, 
but  the  general  rule  given  above  fails  in  this  regard  in 
stating  the  nature  of  the  interest  required,  since  it  is  not 
broad  enough  to  include  all  persons  who  may  properly  be 
joined  as  parties.  There  are  many  persons  who  are  prop- 
erly made  parties,  although  their  interest  in  the  suit  is 
but  formal,^'*  and  can  not  appropriately  be  called  "mate- 
rial," taking  that  word  as  meaning  substantial,  essential 
and  important.^^ 

§  52.  Subject  matter.  In  the  next  place,  the  expression 
"subject  matter"  has  been  criticized.  Some  writers 
interpret  these  words  to  mean  the  property  or  res  in- 
volved, and  suggest  that  the  rule,  to  be  accurate,  should 
read  "interested  in  the  object  of  the  suit,"  meaning  the 
right  or  question  to  be  determined.^*'  Others  say  that 
both  terms  should  be  used,  and  that  "all  persons  having 
an  interest  in  both  the  subject  matter  and  the  object  of 
the  suit,  and  all  persons  against  whom  relief  must  be 
obtained  in  order  to  accomplish  the  object  of  the  suit" 
is  the  only  complete  definition.^^  But  the  "subject  mat- 
ter" of  equity  jurisdiction  is  those  estates,  titles,  rights 
and  interests  which  equity  recognizes,  enforces  and  pro- 
tects; and  such,  it  is  submitted,  is  the  subject  matter  of 

Fed.   635    (C.   C.   1909);   Bonner  v.  50.  Calvert's  Parties,  §§1-11;  16 

R.   Co.,   151  Fed.   985,  81   C.   C.   A.  Cyc,   pp.    183,   184;    Fletcher's   Eq. 

476   (1907).  PI.  &  Pr.,  Sec.  19;  Story's  Eq.  PI. 

48.  Story's    Eq.    PI.    (10th    ed.),  (10th  ed.).  Sec.   72;   Beach's  Mod. 
Sec.   76a.  Eq.  Pr.,  Sec.  54. 

These    may    be    called    "formal  51.  Prof.   Tyler   in   Mitford    and 

proper  parties."     See  §  55,  post,  p.  Tyler's  Eq.  PI.  &  Pr.,  p.  36;  15  Enc. 

84.  P.  &  P.,  p.  584;   Street's  Fed.  Eq. 

49.  See  Century  Dictionary,  defi-  Pr.,  Sec.  503. 
nition  of  "material." 


74 


EQUITY  PRACTICE 


every  suit  in  equity.  Tlie  statement  "all  persons  inter- 
ested in  the  subject  matter"  (i.  e.,  the  title  or  right)  to 
be  determined  by  the  controversy  is  broad  and  complete 
enough  to  include  everj"  fonn  of  interest  and  every  con- 
tingency whidi  can  require  a  person's  joinder  as  a  party 
to  a  suit  in  equity.^  ^  The  general  rule,  therefore,  is  suf- 
ficiently accurate  in  using  the  term  "subject  matter." 


52.  It  is  claimed  by  Mr.  Calvert 
in  his  work  on  Parties  that  the 
phrase  "subject  matter"  as  used 
here  is  indefinite;  that  it  is  some- 
times employed  to  indicate  the 
property  or  res  involved  in  the  con- 
troversy and  sometimes  the  ques- 
tion or  right  to  be  determined. 
There  are  many  cases,  he  says, 
where  a  person  is  interested  in  the 
res  and  yet  need  not  be  made  a 
party,  as  for  example  where  a  cred- 
itor sues  an  executor  to  enforce 
payment  of  his  debt  the  residuary 
legatees  are  materially  interested 
in  the  res,  yet  they  need  not  be 
made  parties.  (Such  a  bill,  it  is 
to  be  remembered,  is  not  now  main- 
tainable in  most  of  the  equity 
courts  of  the  law  and  equity  states, 
since  all  matters  of  administration 
are  given  over  to  the  probate  and 
orphans'  courts.)  So  where  a  suit 
is  brought  by  a  trustee  merely  to 
recover  the  trust  property  from 
third  parties  no  question  as  to  the 
administration  of  the  tryst  being 
raised,  the  cestui  que  trust  is  un- 
questionably interested  in  the  sub- 
ject of  the  suit,  yet  he  need  not  be 
made  a  party  since  his  equitable 
rights  are  unaffected  by  the  result 
of  the  suit.  Therefore  Mr.  Calvert 
says  that  it  is  the  interest  in  the 
question  or  right  to  be  determined 
by  the  suit  which  governs  the  sub- 
ject of  parties,  or,  in  other  words, 


those  should  be  parties  who  are  in- 
terested in  the  object  of  the  suit 
rather  than  in  the  subject  matter. 

But  as  Judge  Story  points  out 
(Story's  Equity  PI.,  10th  ed., 
§  76b),  the  residuary  legatees  are 
interested  in  the  object  just  as 
much  as  in  the  subject  matter  of 
the  suit  brought  by  the  creditor 
against  the  executor,  for  the  suc- 
cess of  his  suit  reduces  their  resi- 
due pro  tanto. 

So  the  cestui  que  trust  is  direct- 
ly interested  in  the  object  of  a  suit 
by  his  trustee  to  .  recover  trust 
property  from  a  third  party.  It  is 
really  the  cestui 's  right  which  the 
trustee  is  endeavoring  to  determine 
and  enforce — a  right  in  which  he 
has  the  sole  beneficial  interest. 
There  seems  therefore  to  be  no 
practical  difference  in  the  result 
between  an  interest  in  the  subject 
matter  and  in  the  object  of  a  suit. 
The  writer  would  suggest  (see 
Story,  §  141)  that  in  all  the  ex- 
amples cited  by  Mr.  Calvert  and 
Judge  Story  the  fact  that  the  resid- 
uary legatee  or  cestui  que  trust  is 
not  a  necessary  party  is  not  due 
to  the  fact  that  he  is  interested  in 
the  subject  matter  and  not  the  ob- 
ject of  the  suit,  for  he  seems  to  be 
equally  interested  in  each,  but  the 
distinction  in  such  cases  rests  en- 
tirely on  the  principle  of  repre- 
sentation.    The  trustee  is  supposed 


PARTIES  75 

§  53.  Should  be  made  parties.  The  third  difficulty  with 
the  rule  is  the  indefinite  nature  of  the  j)hrase  ' '  should  be 
made  parties."  In  the  first  place,  this  raises  the  question, 
what  is  a  "  party  "  ?  In  a  narrow  sense,  a  person  is  a  party 
in  an}^  particular  litigation  who  is  named  as  such.  On  the 
other  hand,  in  a  broad  sense,  any  person  who  is  interested 
in  the  subject  matter  of  the  litigation  is  a  party  to  the 
suit  though  he  is  not  individually  before  the  court.  But 
either  of  these  uses  is  inadequate  to  our  purposes.  If  used 
in  either  sense,  difficulties  caused  by  the  absence  of  a 
necessary  party  either  would  not  arise  or  could  be  cured 
by  merely  naming  the  absent  person  as  a  party .  The  chief 
problems  concerning  parties  in  equity,  however,  arise 
in  cases  where  certain  persons  who  are  interested  in  the 
subject-matter,  and  who  are  or  might  easily  be  named 
as  parties,  are  not  personally  amenable  to  the  jurisdiction 
of  the  court.  Upon  such  persons  the  court  is  often  unable 
effectively  to  lay  its  commands.  For  instance,  although 
persons  be  named  as  parties,  process  be  issued  against 
them  under  a  prayer  to  that  effect,  their  property  be 
sequestered,  and  their  agents  or  representatives  or  even 
themselves  be  served  with  an  order  of  notice,  the  court 
may  lack  power  over  them  if  they  are  out  of  the  state. 
Such  persons,  although  parties  in  both  the  senses  above 

to  represent  the  cestui  que  trust  question  if  in  the  majority  of  cases 
sufficiently  in  such  cases,  but  other-  it  is  employed  with  such  a  mean- 
wise  where  the  administration  of  ing.  When  we  speak  of  the  sub- 
the  trust  is  concerned,  which  is  a  ject  matter  of  equity  jurisdiction 
question  more  between  the  trustee  we  do  not  mean  the  property  or 
and  cestui.  So  the  executor  repre-  res  subject  to  that  jurisdiction;  we 
sents  the  residuary  legatee  sufifi-  mean  the  rights,  titles  and  inter- 
ciently  and  the  latter  is  not  re-  ests  which  equity  determines,  en- 
quired to  be  a  party  in  the  bill,  forces  and  protects.  So  as  stated 
above  referred  to,  by  a  creditor  to  in  the  text,  the  interest  in  the  sub- 
establish  his  debt  against  the  es-  ject  matter  of  a  suit  in  equity, 
tate.  within  the  meaning  of  the  rule  as 
But  there  is  no  reason  why  the  to  parties,  is  an  interest  in  the 
term  "subject  matter"  should  be  right  or  title  which  that  suit  in 
made  to  mean  only  the  property  or  equity  is  to  determine  and  en- 
res    involved    in    a    suit,    and    we  force.  ■ 


76  EQUITY  PRACTICE 

mentioned,  are  not  parties  for  the  purposes  of  that  suit. 
Consequently,  as  the  phrase  is  best  used,  a  ''party"  to 
any  litigation,  is  one  who  is  personally  amenable  in  that 
suit  to  the  jurisdiction  of  the  court. 

Again,  the  word  "should"  in  this  connection  is  inade- 
quate. As  already  mentioned,  there  is  a  class  of  per- 
sons having  an  interest  merely  formal  in  its  nature  whom 
it  is  entirely  proper  to  join  if  either  side  desires,  but 
whom  the  court  would  not  require  if  omitted.^^  Of  these 
it  is  more  correct  to  say  that  they  may  properly  be  made 
parties,  rather  than  that  they  should  or  ought  to  be 
made  parties.  The  latter  phrase  as  used  in  the  general 
rule  does  not  apply  to  these  formal  parties,  it  applies 
only  to  persons  possessing  a  material  interest. 

But  even  considering  it  as  thus  applied  to  persons 
having  material  interests,  the  word  is  still  inadequate. 
It  does  not  indicate  what  is  the  effect  on  a  suit  in  equity 
of  the  omission  of  parties  coming  within  the  other  terms 
of  the  rule.  It  does  not  make  clear  whether  it  is  merely 
desirable  to  join  all  persons  materially  interested  as 
parties  when  practicable,  or  whether  it  is  indispensable 
that  all  such  persons  should  be  made  parties.  Now  it  is 
universally  true  that  it  is  proper  and  desirable  to  join  all 
such  persons  in  pursuance  of  the  two  fundamental  prin- 
ciples which  are  mentioned  above.  But  it  is  far  from 
being  true  that  all  such  persons  are  necessary  or  indis- 
pensable parties.  These  two  fundamental  principles, 
having  their  origin  in  natural  justice  on  the  one  hand 
and  public  policy  and  the  convenience  of  the  court  on 
the  other,  are  more  or  less  flexible  in  their  application, 
and  are  made  to  yield  to  the  demands  of  justice  and  the 
discretion  of  the  court  in  individual  cases.^^ 

Consequently  the  general  rule  has  always  been  stated 

53.  Story's  Eq.  PI.  (10th  ed.),  Illinois.  Whitney  v.  Mayo,  15 
Sec.  76a.                                                          111.    252,    255    (1853);    Webster    v. 

54.  Story's    Eq.    PI.    (10th    ed.),      French,  11  111.  254  (1849). 

§  76(c),  §  96  n.  1.  Massachusetts.     Smith     v,     Wil- 


PARTIES  77 

subject  to  certain  exceptions,-^^  the  chief  of  which  are 
cases  where  it  is  impracticable  for  any  reason  such  as 
absence,  or  too  great  numbers,  to  make  persons  parties 
who  would  otherwise  be  necessary.  In  such  cases,  since 
the  two  fundamental  principles  cannot  in  practice  be 
completely  followed,  the  court  will  not  suffer  a  rule 
founded  in  its  own  sense  of  propriety  and  convenience, 
to  become  the  instrument' of  a  denial  of  justice  to  parties 
before  the  court  who  are  entitled  to  relief.^*^  Where 
therefore  it  is  difficult  or  impossible  to  bring  before  the 
court  in  their  individual  persons  all  who  are  interested 
in  the  cause,  the  court  will  dispense  with  them  and 
proceed  to  a  decree,  which  though  failing  to  determine 
all  interests  involved,  or  affecting  necessarily  to  some 
extent  interests  of  persons  individually  absent  from  the 
court,  will  nevertheless  effectively  adjust  certain  rights  of 
those  who  are  parties  in  the  true  sense  of  the  word.^^  But 
the  court  will  refuse  a  decree  where  the  interests  of  the 
absent  persons  are  so  closely  interwoven  with  the 
interests  of  those  before  the  court,  that  no  effective 
decree  can  be  made  without  affecting  the  absent  interests, 
except  in  cases  where  the  persons  before  the  court  are  so 

liams,  116  Mass.  510    (1874);   Ste-  United  States.  McArthur  v.  Scott, 

venson  v.  Austin,  3  Met.  474,  480  113  U.  S.  340,  28  L.  ed.  1015  (1885); 

(1842).  Williams    v.    Bankhead,    19    Wall. 

New     Hampshire.     Erickson     v.  563,  22  L.  ed.  184  (1874);  Smith  v. 

Nesmith,  46  N.  H.  371,  376  (1866).  Lee,    77    Fed.    779    (C.    C,    1896); 

New  Jersey.     Willink  v.  Morris  Hamilton     v.     Savannah,     etc.,     E. 

Canal,    etc.,    Co.,    4    N.    J.    E.    377  Co.,  49  Fed.  412,  418  (C.  C.  1892). 

(1843);  Parker  v.  Stevens,  3  N.  J.  55.  Story's    Eq.    PI.    (10th    ed.), 

E.  56  (1834).  Sees.  77, 136. 

Rhode  Island.     Burrill  v.  Garst,  See   cases   under   note    54,   ante, 

19  R.  I.  38   (1895).  and    cases    in    this    chapter    cited 

Tennessee.     Ketchum  v.  Dews,  4  under   §§  57,  58,  59. 

Cold.  (Tenn.)  539  (1870);  Birdsong  56.  Cockburn    v.    Thompson,    16 

v.   Birdsong,   2   Head    (Tenn.)    302  Ves.  329. 

(1859).  See  cases  cited  in  notes  to  §  57, 

Virginia.      Fitzgibbon    v.   Barry,  jwst,  p.  89,  and  §  59,  post,  p.  92. 

78   Va.   755,   760    (1884);   Harrison  57.  See     cases     cited,      §§56-63, 

V.  Wallton,  95  Va.  721  (1898).  post,  pp.  87  et  seq. 


78  EQUITY  PRACTICE 

connected  with  those  who  are  missing  that  they  may  be 
held  to  represent  them  in  the  conduct  of  the  litigation,  in 
so  far  that  measurably,  at  least,  the  absent  interests  are 
brought  before  the  court.  It  will  be  seen  then  that  these 
persons  who  have  a  material  interest  such  that  their  pres- 
ence will  be  required  when  practicable,  but  who  may  be 
dispensed  with  when  that  is  impracticable,  constitute  an 
entirely  distinct  class  on  the  one  hand  from  those  persons 
having  a  formal  interest  such  that  they  may  properly  be 
joined  but  will  not  be  required,  and  on  the  other  hand 
from  those  persons  whose  presence  is  indispensable  so 
that  without  them  no  decree  can  be  had.  This  distinction 
the  phrase  "should  be  made  parties"  wholly  fails  to 
indicate.  In  fact,  it  cannot  be  indicated  by  the  use  of  any 
one  word  such  as  "should,"  but  only  by  a  division  into 
classes. 

Bearing  in  mind  then  the  discussion  of  terms  and 
classes  above,  the  general  rule  governing  the  joinder 
of  parties  readily  frames  itself  in  three  parts  as  follows: 

1.  All  persons  having  any  interest,  whether  formal 
or  material,  in  the  subject  matter  of  the  suit,  may  prop- 
erly be  made  parties  if  desired. 

2.  All  persons  having  a  material  interest  in  the  subject 
matter  of  the  suit,  should  be  made  parties  if  practicable. 

3.  All  persons  having  a  material  interest  in  the  subject 
matter  of  the  suit  of  such  nature  that  an  effective  decree 
cannot  be  rendered  in  their  absence  without  prejudice 
to  that  interest,  must  be  made  parties. 

Any  person  thus  interested  who  will  not  join  as  plain- 
tiff may  be  joined  as  defendant. 

§  54.  Proper  parties.  It  will  be  seen  from  this  state- 
ment of  the  general  rule  governing  the  joinder  of  parties, 
that  possible  parties  to  a  suit  may  be  divided  into  three 
distinct  classes,  which  may  be  called  for  convenience 
formal,  substantial  and  necessary  parties.^^     The  first 

58.  This  division  of  parties  into  stantial  and  necessary,  is  very 
three  distinct  classes,  formal,  sub-       clearly    laid    down    in    the    United 


PARTIES 


79 


two  of  these  classes,  comprising  those  persons  possessing 
such  interest  either  formal  or  substantial  that  it  is  proper 


states  courts.  See  Eussell  v. 
Clarke,  7  Cr.  98,  3  L.  ed.  271 
(1812);  Shields  v.  Barrow,  17 
How.  130  (1854);  Barney  v.  Bal- 
timore, 6  Wall.  280,  18  L.  ed.  825 
(1868);  Traders'  Bank  v.  Camp- 
bell, 14  Wall.  87,  20  L.  ed.  832 
(1872),  and  Kendig  v.  Dean,  97  U. 
S.  423,  24  L.  ed.  1061  (1878),  for 
the  leading  cases  on  the  subject 
in  that  court.  In  Barney  v.  Bal- 
timore the  court  said:  "There  is 
a  class  of  persons  having  such 
relations  to  the  matter  in  contro- 
A'ersy,  merely  formal  or  otherwise, 
that  while  they  may  be  called 
proper  parties,  the  court  will  take 
no  account  of  the  omission  to 
make  them  parties.  There  is  an- 
other class  of  persons  whose  rela- 
tions to  the  suit  are  such  that  if 
their  interest  and  their  absence 
are  formally  brought  to  the  atten- 
tion of  the  court,  it  will  re- 
quire them  to  be  made  parties,  if 
within  its  jurisdiction,  before  de- 
ciding the  case.  But  if  this  can- 
not be  done,  it  will  proceed  to  ad- 
minister such  relief  as  may  be  in 
its  power,  between  the  parties  be- 
fore it.  And  there  is  a  third  class 
whose  interests  in  the  subject  mat- 
ter of  the  suit  and  in  the  relief 
sought  are  so  bound  up  with  that 
of  the  other  parties  that  their  legal 
presence  as  parties  to  the  proceed- 
ing is  an  absolute  necessity  with- 
out which  the  court  cannot  pro- 
ceed. In  such  cases  the  court  re- 
fuses to  entertain  the  suit  when 
these  parties  cannot  be  subjected 
to   its   jurisdiction." 

Mr.  Beach,  in  his  work  on  Mod- 
ern   Equity    Practice,    adopts    this 


classification  laid  down  by  the 
United  States  courts,  but  in  the 
form  stated  in  the  case  of  Chad- 
bourne's  Ex'rs  V.  Coe,  51  Fed.  479, 
10  U.  S.  App.  83  (1892),  which  is 
slightly  different  in  the  terms  em- 
ployed but  not  in  the  essential  dis- 
tinctions. The  three  classes  are 
there  called  formal,  necessary  and 
indispensable  (as  in  Shields  v. 
Barrow),  but  there  are  several  se- 
rious objections  to  these  terms.  In 
the  first  place,  the  words  neces- 
sary and  indispensable  are  nearly 
if  not  quite  synonymous  in  their 
meanings,  as  given  in  the  diction- 
aries; secondly,  the  word  neces- 
sary has  come  to  include  in  prac- 
tice those  parties  who  are  really 
indispensable,  and  Mr.  Beach, 
though  using  the  word  necessary 
to  indicate  class  2  in  his  classifi- 
cation (§  35)  nevertheless,  un- 
fortunately for  the  sake  of  clear- 
ness, discusses  under  the  head  of 
necessary  parties  in  a  following 
section  (§  59)  those  parties  who 
are  wholly  indispensable  and  neces- 
sary to  a  decree  and  discusses  class 
2  under  the  head  of  interested  but 
not  indispensable  parties,  although 
they  are  termed  necessary  parties 
in  his  classification  (§  55)  third- 
ly, calling  class  2  necessary  par- 
ties entirely  ignores  the  plain  and 
well  established  distinction  be- 
tween necessary  and  proper  parties 
stated  in  the  text,  by  Mr.  Pomeroy 
in  the  note  below,  and  in  the  later 
Federal  cases  there  cited  (Sioux 
City  Terminal  Co.  v.  Trust  Co.,  82 
Fed.  124,  126  (1897),  and  Kelley  v. 
Boetcher,  85  Fed.  55,  64  (1898)), 
since  class  2  called  by  Mr.  Beach 


80 


EQUITY  PRACTICE 


or  desirable,  although  not  essential,  to  make  them  parties, 
are  included  under  the  general  head  of  proper  parties, 


"necessary"  are  not  necessary  in 
the  sense  in  which  that  word  is 
used,  with  reference  to  proper  par- 
ties, in  text-book  and  decisions,  nor 
in  the  strict  sense  of  the  word,  but 
are  merely  proper  parties  possess- 
ing a  substantial  but  not  indis- 
pensable interest.  Consequently  it 
would  seem  that  strict  etymology 
and  theory,  practical  results  and 
clearness  would  all  be  better 
served  by  confining  the  term 
"necessary"  to  the  third  class,  or 
parties  who  are  indispensable,  al- 
though it  is  true  that  the  word  nec- 
essary is  sometimes  applied  in  de- 
cisions to  proper  parties  possessing 
a  substantial  interest,  whom  it  is 
possible  to  join  since  when  their 
joinder  is  possible  it  will  always 
be  required,  as  stated  in  Barney  v. 
Baltimore  above,  though  when  not 
possible  the  case  may  proceed  with- 
out them.  Consequently  since  the 
court  will  not  allow  the  cause  to 
proceed  without  them  when  it  is 
possible  to  join  them  they  may  in 
that  sense  be  said  to  be  necessary 
parties;  but  the  only  way  to  avoid 
confusion  is  to  confine  the  word 
necessary  to  its  strict  meaning  of 
parties  who  cannot  be  dispensed 
with  under  any  circumstances  of 
the  case  and  employ  some  other 
term  such  as  proper  parties  sub- 
stantial, to  indicate  class  2. 

Again  as  to  the  definition  of  for- 
mal parties,  in  the  opinion  of  the 
court  in  Chadbourne's  Ex'rs  v. 
Coe,  above  cited,  and  also  in  "Wil- 
liams v.  Bankhead,  19  Wall.  563,  22 
L.  ed.  184  (1873),  quoted  by  Mr. 
Beach,  these  are  defined  as  "those 
who  have  no  interest  in  the  contro- 


versy between  the  immediate  liti- 
gants, but  have  an  interest  in  the 
subject  matter  which  may  be  con- 
veniently settled  in  the  suit  and 
thereby  prevent  further  litiga- 
tion." This  definition  would  seem 
to  be  more  applicable  to  class  2,  or 
proper  parties  having  a  substantial 
but  separable  interest,  for  it  is 
difficult  to  conceive  of  a  person 
having  an  interest  in  the  subject 
matter  of  the  controversy  without 
an  interest  in  the  controversy.  He 
may  not  be  so  immediately  or  di- 
rectly concerned,  but  that  is 
simply  a  question  of  the  degree 
of  remoteness  of  his  interest.  If 
it  be  so  remote  that  the  court  can 
properly  take  no  account  of  its 
omission  it  would  be  merely  a 
formal  interest,  but  if  it  be  an 
interest  "which  may  be  conveni- 
ently settled  in  the  suit  and 
thereby  prevent  further  litiga- 
tion," as  stated  in  the  definition 
adopted  by  Mr.  Beach,  it  is 
clearly  a  case  where  it  is  the  duty 
of  the  court  to  require  the  joinder 
of  the  person  possessing  such  an 
interest,  in  order  to  satisfy  the 
fundamental  rule  that  requires  the 
court  to  determine  completely  all 
interests  involved,  in  the  one  suit 
when  practicable,  and  such  person 
would,  therefore,  clearly  come  un- 
der class  2,  as  stated  in  Barney  v. 
Baltimore,  or  proper  parties  sub- 
stantial. 

Finally,  in  the  opinion  of  the 
court  in  Chadbourne's  Ex'rs  v.  Coe, 
above  mentioned  (quoted  by  Mr. 
Beach,  §  55),  it  is  stated  that 
the  general  rule  and  the  rule  in 
most  of  the  state  courts  is,  that  the 


PARTIES 


81 


and  stand  between  improper  parties  on  the  one  hand, 
and  necessarj"  parties  on  the  other  hand.  Improper 
parties,  as  we  shall  see  later  ^'-^  are  those  who  should  in 
no  event  be  made  parties,  and  who  may  themselves  object 
if  made  defendants,  and  whose  joinder  as  plaintiffs  may 
be  fatal  to  the  bill  until  it  is  amended.  As  distinguished 
from  improper  parties,  proper  parties  are  those  who  may 
themselves  not  object  to  being  made  defendants,  and 
whose  joinder  as  plaintiffs  is  not  objectionable.  On  the 
other  hand,  as  distinguished  from  necessary  parties, 
proper  parties  may  be  defined  as  those  without  whom  a 
decree  can  be  made,  and  under  certain  circumstances  will 
be  made,  adjusting  the  rights  of  the  parties  before  the 


parties  included  under  class  2,  i.  e., 
those  whose  presence  is  desirable 
in  order  to  determine  completely 
all  interests  involved  in  the  con- 
troversy, must  alvpays  be  joined  or 
the  bill  will  be  dismissed,  or,  in 
other  words,  that  according  to  the 
general  rule  they  are  indispensa- 
ble, but  that  this  rule  is  specially 
modified  in  the  United  States  courts 
by  reason  of  the  limitation  imposed 
upon  these  courts  by  the  citizen- 
ship of  parties  and  their  inability 
to  bring  in  parties  out  of  their 
jurisdiction  by  publication.  But 
this  is  not  the  case.  The  principle 
that  parties  whose  interests  are 
such  that  their  presence  is  re- 
quired when  possible  in  order  to 
end  the  whole  controversy,  may, 
nevertheless,  if  such  interests  are 
separable  and  will  not  be  directly 
affected  by  the  decree,  be  dis- 
pensed with  when  out  of  the  juris- 
diction or  when  for  any  other  rea- 
son their  joinder  is  impracticable, 
is  well  recognized  and  fully  stated 
in  Story's  Eq.  PI.  (10th  ed.),  §79, 
and  supported  by  early  English 
as  well  as  American  authorities 
Whitehouse  E.  P.  Vol.  I — 6 


(see  Cockburn  v.  Thompson,  16 
Ves.  321,  326;  HalJet  v.  Hallet,  2 
Paige  (N.  Y.)  15,  18),  and  Judge 
Story,  after  stating  the  excep- 
tion as  prevailing  in  general  chan- 
cery practice,  says,  "This  ground 
of  exception  is  peculiarly  appli- 
cable to  suits  in  equity  in  the 
courts  of  the  United  States;  "  since 
their  jurisdiction  is  dependent  upon 
the  parties  being  citizens  of  differ- 
ent states,  and  therefore  jurisdic- 
tion would  be  ousted  by  joining 
persons  who  might  be  proper  par- 
ties but  who  were  citizens  of  the 
same  state.  Consequently  the  rule 
in  the  United  States  courts  with 
all  its  exceptions  is  simply  the  rule 
of  general  chancery  practice,  and 
not  a  modification  or  relaxation  of 
the  latter,  only  there  is  more  fre- 
quent occasion  for  application  of 
the  exceptions  to  the  rule,  in  the 
United  States  courts  than  else- 
where. 

See  also  Donovan  v.  Campion,  85 
Fed.  71,  29  C.  C.  A.  30  (1898),  and 
Union  Mill  &  Mining  Co.  v.  Dang- 
berg,  81  Fed.  73  (C.  C.  1897). 

59.  See  §  64a,  post,  p.  106. 


82  EQUITY  PRACTICE 

court,  but  not  a  decree  completely  determining  all  rights 
involved  in  the  controversy;  while  necessary  j^arties  are 
indispensable  parties,  without  whom  no  decree  at  all  can 
be  rendered  in  the  cause. 

The  distinction  between  proper  and  improper  parties 
causes  little  confusion  in  practice,  from  the  point  of 
view  of  the  plaintiff.  Members  of  either  of  these  two 
classes  may  be  included  or  excluded  without  affecting 
his  right  of  recovery  under  his  bill.  The  courts  need  to 
distinguish  between  the  two  classes  only  when  it  is 
claimed  that  an  improper  party  is  included,  and  the  only 
risk  that  the  plaintiff  runs  is  of  having  to  amend  his 
bill  by  omitting  a  party  whom  the  court  holds  improper. 
On  the  other  hand,  the  omission  of  a  person  who  would 
be  but  a  "proper"  party  if  included,  is  justifiable,  as 
well  as  the  omission  of  one  who  would  be  actually  impro- 
per to  include.  It  is  therefore  not  usually  possible  to 
determine  from  the  opinion  of  the  court  whether  a  person 
who  is  held  to  be  correctly  omitted  would,  if  included  in 
the,  suit,  be  but  a  proper  party,  dispensable  under  rules 
discussed  below,  or  whether  he  would  be  actually  an 
improper  party ;  and  from  the  point  of  view  of  the  plaint- 
iff, this  is  little  more  than  a  question  of  nomenclature. 

The  distinction  between  proper  and  necessary  parties 
is  however  of  prime  importance  to  the  plaintiff.  The 
omission  of  a  necessary  party  may  be  fatal  to  his  bill, 
if  it  is  impossible  to  bring  the  omitted  person  before  the 
court;  while  the  omission  of  a  merely  "proper"  party 
\s  justifiable.  Consequently,  therefore,  although  the  dis- 
tinction between  these  two  classes  is  of  no  importance 
when  the  court  holds  that  a  party  is  correctly  present  in 
the  litigation,  it  is  of  the  greatest  importance  when  it  is 
claimed  that  a  necessary  party  is  missing.  Unfortu- 
nately, the  distinction  between  proper  and  necessary 
parties  has  led  to  great  confusion  because  of  different 
ways  in  which  the  word  "necessary"  has  been  used,  in 
both  decisions  and  text  books.    The  words  "necessary" 


PARTIES 


83 


and  "proper"  have  been  used  indiscriminately  for  each 
other,  instead  of  reserving  the  word  "necessary"  to 
express  the  idea  of  indispensable,  which  is  the  meaning 
that  is  given  to  it  in  this  work.*^*^  A  consistent  use  of  the 
term  with  this  meaning  would  go  far  to  clarify  the  dis- 


60.  Mr.  Pomeroy,  in  Eemedies 
and  Eemedial  Eights  (2d  ed.), 
§  329,  sets  forth  the  distinction 
very  clearly  as  follows:  "In  all 
equitable  actions,  a  broad  and  most 
important  distinction  must  be 
made  between  two  classes  of  par- 
ties defendant,  namely  (1)  those 
who  are  'necessary,'  and  (2)  those 
who  are  'proper.'  Necessary  par- 
ties, when  the  term  is  accurately 
used,  are  those  without  whom  no 
decree  at  all  can  be  effectively 
made  determining  the  principal  is- 
sues in  the  cause.  Proper  parties 
are  those  without  whom  a  substan- 
tial decree  may  be  made,  but  not  a 
decree  which  shall  completely  settle 
the  rights  of  all  the  persons  who 
have  any  interest  in  the  subject 
matter  of  the  litigation.  Confusion 
has  frequently  arisen  from  a  neg- 
lect by  text  writers  and  even 
judges  to  observe  this  plain 
distinction.  Parties  are  some- 
times spoken  of  as  necessary 
when  they  are  merely  proper. 
Thus,  because  a  decree  cannot 
be  rendered  which  shall  deter- 
mine the  rights  of  certain  classes 
of  individuals  without  making  them 
defendants  in  the  action,  they  are 
not  unfrequently  called  necessary 
parties;  or,  in  other  words,  because 
they  must  be  joined  as  defendants 
in  a  particular  suit,  in  order  that 
the  judgment  therein  may  bind 
them,  they  are  denominated  'nec- 
essary' parties  absolutely.  Such 
persons  are  'necessary'  suh  modo — 


that  is,  they  must  be  brought  in 
if  it  is  expected  to  conclude  them 
by  the  decree;  but  to  call  them 
'necessary'  absolutely  is  to  ignore 
the  familiar  and  fundamental  dis- 
tinction between  the  two  classes  of 
parties  which  have  just  been  men- 
tioned. This  inaccurate  use  of  lan- 
guage would  make  every  person  a 
necessary  party,  who  should  actual- 
ly be  joined  as  a  co-defendant  in 
an  equitable  action." 

This  distinction  is  also  clearly  il- 
lustrated and  stated  in  the  follow- 
ing cases:  Ellsworth  v.  McCoy,  95 
Ga.  44  (1894);  Sioux  City  Termi- 
nal Co.  V.  Trust  Co.,  82  Fed.  124, 
126  (C.  C.  A,  1897) ;  Kelly  v.  Boett- 
cher,  85  Fed.  55,  64  (C.  C.  A.  1898). 
In  Sioux  City  Terminal  Co.  v.  Trust 
Co.  the  court  said:  "An  indispen- 
sable party  is  one  who  has  such  an 
interest  in  the  subject  matter  of 
the  controversy  that  a  final  decree 
between  the  parties  before  the 
court  cannot  be  made  without  af- 
fecting his  interests  or  leaving  the 
controversy  in  such  a  situation  that 
its  final  determination  may  be  in- 
consistent with  equity  and  good 
conscience.  Every  other  party  who 
has  any  interest  in  the  controversy 
or  the  subject  matter  which  is  sep- 
arable from  the  interest  of  the  par- 
ties before  the  court  so  that  it  will 
not  be  immediately  affected  by  a 
decree  which  does  complete  justice 
between  them  is  a  proper  party. ' ' 

In  Kelly  v.  Boetteher  the  court 
defined  a  proper  party  as  follows: 


84  EQUITY  PRACTICE 

cussions  on  tlie  subject  of  parties  both  by  the  text  book 
writers  aud  by  the  courts. 

The  distinction  between  the  two  classes  of  proper 
parties  is  of  practical  importance  chiefly  when  a  person 
has  been  omitted  whom  the  court  holds  to  have  been  a 
proper  person  to  have  included.  In  that  case,  if  he  is 
of  the  formal  class,  the  jDlaintiff  has  the  privilege  of 
omitting  him  even  though  his  joinder  is  practicable;  but 
if  of  the  other  class,  the  omission  must  be  further  justified 
by  certain  additional  circumstances,  as  will  be  shown 
below.  In  all  other  cases,  substantial  and  formal  parties 
do  not  differ  in  practical  characteristics  from  each  other. 
It  is  not  always  possible  to  determine  from  the  opinion 
of  the  court  whether  a  person  who  is  held  to  be  correctly 
included  or  excluded  as  being  proper  is  further  of  the 
formal  or  the  substantial  class;  and  as  a  practical  matter 
it  is  only  important  to  make  this  distinction  in  the  cir- 
cumstances mentioned  above. 

§  55.  Formal  parties.  Formal  parties  are  those  persons 
joined  as  parties  who  have  no  material  interest  in  the 
suit,  but  have  merely  a  naked  legal  title  or  other  interest 
of  so  purely  formal  a  nature,  that  while  it  is  allow- 
able to  join  them,  their  omission  will  be  disregarded 
by  the  court,^^  even  though  it  would  have  been  prac- 

"A  proper  party  as  distinguished  Illinois.     Starne  v.  Farr,  17  111. 

from  one  whose  presence  is  neces-  App.  491   (1SS5). 

sary   to   the   determination    of   the  Maryland.     Hoye  v.  Johnston,  2 

controversy,  is  one  who  has  an  in-  Gill.   (Md.)   291   (lS-1-1). 

terest  in  the  subject  matter  of  the  Michigan.    Sweet  v.  Converse,  88 

litigation   which    may   be   conveni-  ]^jieh.  1   (1891);   Miller  v.  Aldrich, 

ently  settled  therein."  31  Mich.  408  (1875). 

61.  Alabama.      Ogletree    v.    Mc-  Mississippi.      Cook   v.  Ligon,   54 

Quaggs,  67  Ala.  580  (1880);  Milsap  j^j^^   g^.,  .^g--. 
V.  Stanley,  50  Ala.  319  (1873);  Inge 
V.  Boardman,  2  Ala.  331  (1841) 


New  Jersey.    Kean  v.  Johnson,  9 


_,  ,               '       ,,       „.,          /-p,  ,  N.  J.  E.  401  (1853). 

Delaware.    Dodd  v.  Wilson,  4  Del.  ^    ^    ' 

Ch.    399     (1872);    Satterthwait    v.  Tennessee.    Aiken  v.  Suttle,  4  Lea 

Marshall,  4  Del.  Ch.  337  (1887).  (Tenn.)  103  (1879). 

Florida.     Indian  Kiver,  etc.,  Co.  Vermont.     Day  v.  Cu-mmings,  19 

V.  Wooten,  48  Fla.  271  (1904).  Vt.  496   (1847). 


PARTIES 


85 


ticable  to  join  them,  and  a  demurrer  will  not  lie  for 
the  want  of  them.*^^  As  has  been  suggested  above,  the 
distinctions  between  j^roper,  improper  and  necessary  par- 
ties, and  between  formal  and  substantial  proper  i3arties, 
are  not  always  clear  from  the  opinions  of  the  court;  but 
it  may  properly  be  said  that  an  example  of  a  formal 
proper  party  is  a  person  having  the  naked  legal  title  in 
the  subject  matter  of  the  bill,  and  no  beneficial  interest 
therein;  ^^  he  may  be  made  a  party  so  that  the  legal  right 
may  be  bound  by  the  decree  of  the  court,  but  the  suit  will 
be  entertained  by  the  court  without  requiring  that  he  be 
made  a  party.  So,  where  the  assignment  of  a  chose  in 
action  is  absolute,  unconditional  and  unquestioned,  the 
assignor  need  not  be  joined;  he  is  at  most  merely  a 
nominal  or  formal  party  who  may  properly  be  joined,  but 
whose  omission  the  court  will  disregard.^^    Other  exam- 


Virginia.  Charron  v.  Boswell,  18 
Gratt.   (Va.)   216  (1868). 

United  States.  Bacon  v.  Eives, 
106  U.  S.  99,  27  L.  ed.  69  (1882); 
Walden  v.  Skinner,  101  U.  S.  577, 
25  L.  ed.  963  (1880);  Union  Bank 
V.  StaflPord,  12  How.  327,  18  L.  ed. 
1008  (1851);  Donovan  v.  Campion, 
85  Fed.  71,  56  U.  S.  App.  388 
(1898) ;  Phelps  v.  Elliot,  29  Fed.  53 
(C.  C.  1886). 

62.  Story's  Eq.  PI.  (lOth  ed.), 
Sec.  229;  Olivia  v.  Bunaforza,  31 
N.  J.  Eq.  395   (1879). 

See  cases,  note  61,  ante. 

63.  Story's  Eq.  PI.  (lOth  ed.), 
Sec.  153.  Thus  in  Kichards  v. 
Pierce,  52  Me.  563  (1864),  where 
a  creditor  caused  his  debtor's  right 
to  redeem  a  prior  mortgage  to  be 
sold  on  execution,  and  after  time 
for  redemption  had  expired,  com- 
menced a  suit  in  equity  against  the 
assignee  of  the  mortgage  to  redeem 
it,  making  the  execution  debtor 
also   a  party   defendant  the   court 


said:  "It  is  often  the  case  in 
equity  that  one  is  made  a  party  de- 
fendant, with  good  reason,  simply 
for  the  purpose  of  barring  any  sub- 
sequent claim  of  title.  When  one 
claims  under  an  officer 's  sale  in 
invitum,  though  not  bound  to  do  it, 
he  is  certainly  justified,  in  assert- 
ing his  right  against  other  persons, 
in  making  the  execution  debtor  a 
party."  See  also  Ogletree  v.  Mc- 
Quaggs,  67  Ala.  580  (1880);  Dubs 
V.  Egli,  167  111.  514  (1897);  Cannon 
v.  Barry,  59  Miss.  289,  305  (1881); 
Batchelder  v.  Wendell,  36  N.  H. 
204  (1858);  Day  v.  Cummings,  19 
Vt.  496  (1847);  Bacon  v.  Rives, 
106  U.  S.  99,  27  L.  ed.  69  (1882); 
Walden  v.  Skinner,  101  U.  S.  77, 
25  L.  ed.  963  (1880);  Wormley  v. 
Wormley,  8  Wheat.  422,  451,  5  L. 
ed.  651,  659  (1823),  husband  of  real 
party  in  interest, 

64.  Alabama.  Jones  v.  Smith,  92 
Ala.  455  (1890);  Reese  v.  Brom- 
berg,  88  Ala.  619  (1889). 


86 


EQUITY  PRACTICE 


pies  of  formal  parties  are  naked  trustees,^^  and  under 
some  circmustances  agents  and  attorneys,  officers  of  cor- 
porations, and  assignees  pendente  lite.^^ 


Florida.  Betton  v.  Williams,  4 
Fla.   11    (1851). 

Maine.  Brown  v.  Johnson,  53  Me. 
246  (1865);  Moor  v.  Veazie,  32  Me. 
343  (1850);  Miller  v.  Whittier,  32 
Me.  203    (1850). 

Maryland.  Grand  United  Order 
V.  Merklin,  65  Md.  579  (1886). 

Massachusetts.  Currier  v.  How- 
ard, 14  Gray  511   (1860). 

Michigan.  Morey  v.  Forsyth,  1 
Walk.  Ch.  465  (1844). 

New  Jersey.  Teeter  v.  Veiteh, 
61  A.  14  (N.  J.  E.  1905);  Miller  v. 
Henderson,  10  X.  J.  E.  320  (1855). 

Rhode  Island.  Sayles  v.  Tibbitts, 
5  E.  I.  79  (1857). 

Vermont.  Eureka  Marble  Co.  v. 
Windsor,  etc.,  Co.  47  Vt.  430  (1874). 

Virginia.  Omohundro  v.  Henson, 
26  Gratt.  (Va.)  511  (1875);  James 
Eiver,  etc.,  Co.  v.  Littlejohn,  18 
Gratt.  (Va.)  53  (1867);  Lynchburg 
Iron  Co.  V.  Tayloe,  79  A'a.  671,  674 
(1884). 

West  Virginia.  Vance  v.  Evans, 
11  W.  Va.  342  (1887). 

United  States.  Buffington  v.  Har- 
vey, 95  U.  S.  99,  24  L.  ed.  381 
(1877);  O 'Shaugnessy  v.  Humes, 
129  Fed.  953  (C.  C.  1904);  Ben- 
ton V.  Allen,  2  Fed.  448  (C.  C. 
1880). 

In  some  of  the  above  cases  the 
courts  point  out  the  distinction  be- 
tween cases  such  as  those  men- 
tioned in  the  text,  and  cases  (see 
§  71,  post,  p.  135)  where  the  as- 
signor is  more  than  a  formal  party, 
because  the  assignment  is  condi- 
tional or  doubtful  or  some  liability 
remains  in  the  assignee  which  may 
be  affected  by  the  decree. 


65.  Story's  Eq.  PI.  (10th  ed.). 
Sec.  76(a) ;  Bacon  v.  Eives,  106 
U.  S.  99,  27  L.  ed.  69  (1882) ;  Wal- 
den  V.  Skinner,  101  U.  S.  589,  25  L. 
ed.  963  (1880);  Pac.  E.  Co.  v. 
Ketchum,  101  U.  S.  299,  25  L.  ed. 
932  (1880);  Lake,  etc.,  E.  Co.  v. 
Ziegler,  99  Fed.  114,  39  C.  C.  A. 
431  (1900) ;  Stewart  v.  Chesapeake, 
etc.,  Co.,  1  Fed.  361  (C.  C.  1880). 

So  also,  a  corporation  owning  the 
legal  title,  where  the  controversy 
is  as  to  the  beneficial  ownership 
between  the  stockholders  and  oth- 
ers. Connery  v.  Sweeney,  81  Fed. 
14,  26  C.  C.  A.  309  (1896). 

Trustees  holding  legal  title  are 
necessary  parties  when  it  is  essen- 
tial to  the  bill  that  the  legal  title 
be  bound,  as  in  a  foreclosure  suit. 
Hambriek  v,  Eussell,  86  Ala.  199 
(1888).  In  some  states,  dry  or 
naked  trusts  are  abolished.  Ala- 
bama, Code  1907,  Sec.  3408.  In 
these  states,  trustees  are  always 
necessary  parties  to  a  suit  concern- 
ing the  trust.  McCulley  v.  Chap- 
man, 58  Ala.  325  (1877);  Kimball 
V.  Greig,  47  Ala.  230  (1872). 

66.  Agents  and  Attorneys. 
Brown  v.  Haven,  12  Me.  164 
(1835);  Annapolis  v.  Harwood,  32 
Md.  471  (1870);  Whittemore  v. 
Cowell,  7  All.  (Mass.)  446  (1863); 
Sweet  V.  Converse,  38  Mich.  1 
(1878);  Hastings  v.  Belden,  55 
Vt.  273  (1882);  Donovan  v.  Cam- 
pion, 85  Fed.  71,  56  U.  S.  App.  388 
(C.  C.  1898);  Wood  v.  Davis,  18 
How.  467,   15  L.  ed.  460   (1855). 

Officers  of  a  Corporation  when  no 
relief  or  discovery  is  sought  against 
them:      Doyle   v.    San   Diego,   etc., 


PARTIES  87 

§  56.  Proper  parties  substantial.  Proper  parties  sub- 
stantial are  those  persons  rightly  joined  and  subjected  to 
the  jurisdiction  because  of  having  some  material  interest 
in  the  suit,  in  pursuance  of  the  two  fundamental  princi- 
ples mentioned  above,  but  who  might  be  dispensed  with  as 
parties  under  the  circumstances;  As  has  been  suggested, 
above,  the  characteristics  of  this  class  of  proper  parties 
are  chiefly  important  when  the  person  about  whom  the 
controversy  arises  is  not  a  party  at  all.  Something  more 
than  the  plaintiff's  mere  choice  must  then  be  shown  to 
justify  the  omission  of  a  person  who  if  joined  would  be 
a  substantial  party,  while  that  is  not  true  of  persons  hav- 
ing but  a  formal  interest.  The  facts  which  will  justify 
the  omission  may  be  classified  as  follows:  In  the  first 
place,  joinder  must  be  impracticable  either  because  of  the 
number,  the  unknown  nature,  or  the  absence  from  the 
jurisdiction  of  the  omitted  persons;  in  the  second  place, 
the  persons  omitted  must  have  either  interests  so  closely 
connected  with  the  interests  of  the  actual  parties  that 
the  decree  between  the  actual  parties  will  necessarily 

Co.,  43  Fed.  349  (C.  C.  1890) ;  Pio-  The  criterion  of  whether  a  party 

neer,  etc.,  Co.  v.  Baker,  20  Fed.  4  is  formal  or  necessary  is  whether  a 

(C.    C.    1884);    Hatch    v.    Chicago,  decree     is     sought     against     him. 

etc.,  E.  Co.,   6  Blatchf.   105,  F.   C.  Brooks  v.   Lewis,   13  N.  J.  E.  214 

6204  (C.  C.  1868).  (1860);    Wormley    v.    Wormley,    8 

Assignees  Pendente  Lite.     Phoe-  Wheat.  422,  451,  5  L.  ed.  651,  659 

nix  M.  L.  I.  Co.  v.  Batchen,  6  111.  (1823);   and  see   cases  in   the  pre- 

App.  621  (1880).  vious   notes  to  the  current   section 

So  also  an  insolvent  debtor  who  of  the  text, 

has   conveyed   in   fraud    of   credit-  It  seems  that  a  case  will  be  dis- 

ors,  when  bill  is  brought  by  a  cred-  missed  if  the  only  parties   defend- 

itor:    Merchants'  Bank  v.  MaGee,  ant  are  formal  parties.     Bradley  v. 

108    Ala.    304     (1895);    Coffey    v.  Gilbert,    155    111.    154    (1895);    Mc- 

Norwood,  81  Ala.  512   (1886).  Cauley   v.    Kellogg,   F.    C.    8688,    2 

So  the  first   mortgagee  is  but  a  Woods  C.  C.  13  (C.  C.  1874). 

formal  party,  if  a  party  at  all,  to  In    Ehode    Island,    adult    formal 

a  foreclosure  suit  by  a  second  mort-  parties  need  not  appear  and  answer 

gagee,   who    does   not    dispute    the  unless  specially  required  to   do  so, 

first  mortgagee 's  claim.     Hagan  v.  but  will  be  bound  by  any  decree  in 

Walker,  14  How.  29,  14  L.  ed.  312  the  cause  in  case  they  do  not  ap- 

(1852).  pear.     Equity  Eule  17. 


88 


EQUITY  PRACTICE 


affect  tliem,  but  at  the  same  time  so  far  common  with 
these  interests  that  the  actual  parties  are  reasonably 
likely  to  present  to  the  court  the  points  that  would  be 
made  by  the  absent  persons  if  they  were  before  the  court, 
or  interests  so  loosely  connected  with  the  interests  of  the 
actual  parties  that  the  decree  can  be  made  between  the 
actual  parties  without  necessarily  affecting  the  absent 
persons,  the  decree  effectively  settling  certain  rights  of 
the  actual  parties,  although  not  finally  settling  all  pos- 
sible phases  of  the  controversy.*'^ 


67.  In  Shields  v.  Barrow,  17  How. 
139,  15  L.  ed.  158  (1854),  this  class 
is  described  as  follows:  "Persona 
having  an  interest  in  the  contro- 
versy, and  who  ought  to  be  made 
parties  in  order  that  the  court  may 
act  on  that  rule  which  requires  it  to 
decide  on  and  finally  determine  the 
entire  controversy,  and  do  com- 
plete justice  by  adjustment  all  the 
rights  involved  in  it.  These  per- 
sons are  commonly  termed  neces- 
sary parties,  but  if  their  interests 
are  separable  from  those  of  the  par- 
ties before  the  court,  so  that  the 
court  can  proceed  to  a  decree  and 
do  complete  and  final  justice,  with- 
out affecting  other  persons  not  be- 
fore the  court,  the  latter  are  not 
indispensable  parties." 

In  Lawrence  v.  Eokes,  53  Me. 
110,  114  (1865),  the  court  said: 
"If  the  bill  only  seeks  a  remedy 
and  decree  against  the  defendant 
who  appears,  or  is  within  the  juris- 
diction and  such  judgment  or  de- 
cree will  not  bind  the  absent  and 
cannot  be  enforced  here  or  else- 
where against  them  or  their  prop- 
erty or  rights  but  leaves  as  to  them 
all  questions  open,  then,  although 
they  would  have  an  interest  in  the 
question  before  the  court,  and  a 
decree     might     be     made     against 


them,  yet,  not  being,  the  cause  may 
be  heard  and  a  decree  may  be 
made,  affecting  legally  or  equita- 
bly only  the  party  before  the 
court.  And  we  think  this  may  be 
done,  although  it  is  apparent  that 
it  would  be  more  satisfactory  to 
the  court  to  have  all  the  parties 
connected  with  the  matter  before 
them,  and  their  joinder  would  be 
required  if  they  were  within  the 
jurisdiction  of  the  court." 

This  class  is  particularly  frequent 
in  Federal  cases,  because  of  the 
constitutional  and  statutory  limita- 
tions on  the  jurisdiction  of  Federal 
courts.  A  long  line  of  Federal  de- 
cisions has  developed  and  defined 
this  class  of  which  the  following 
are  the  leading  examples:  Chero- 
kee Nation  v.  Hitchcock,  187  U.  S. 
294,  47  L.  ed.  183  (1902);  McGahan 
V.  National  Bank,  156  U.  S.  218.  39 
L.  ed.  403  (1895) ;  Williams  v.  U.  S., 
138  U.  S.  514,  34  L.  ed.  1026  (1891) ; 
Williams  v.  Bankhead,  19  Wall.  563, 
22  L.  ed.  184  (1873);  Hagan  v. 
Walker,  14  How.  29,  14  L.  ed.  312 
(1852);  Elmendorff  v.  Taylor,  10 
Wheat.  152,  6  L.  ed.  289  (1825); 
Bay  State  Gas  Co.  v.  Eogers,  147 
Fed.  557  (C.  C.  1906) ;  Edwards  v. 
Mercantile  Trust  Co.,  124  Fed.  381 
(C.  C.  1903);  Einstein  v.  Georgia  R. 


PARTIES 


89 


§  57.  Persons  out  of  the  jurisdiction.  Where  the  assignee 
of  a  bank  brought  a  bill  to  recover  the  proceeds  of  a  judg- 
ment sale  of  the  bankrupt's  goods  from  the  defendant,  it 
was  held  in  a  case  in  the  Supreme  Court  of  the  United 
States  that  another  person  who  had  a  like  judgment  and 
execution  levied  on  the  same  goods  was  not  a  necessary 
party  to  the  suit,  being  without  the  jurisdiction.*^^ 


Co.,  120  Fed.  1008  (C,  C.  1903) ;  Wil- 
liams V.  Crabb,  117  Fed.  193,  54 
C.  C.  A.  213,  59  L.  E.  A.  425  (1902) ; 
Anthony  v.  Campbell,  112  Fed.  212, 
50  C.  C.  A.  195  (1901);  Cleveland 
Tel.  Co.  V,  Stone,  105  Fed.  794  (C. 
C.  1900) ;  Plume  Co.  v.  Baldwin,  87 
Fed.  785  (C.  C.  1898);  Union  Mill, 
etc.,  Co.  V.  Dangberg,  81  Fed.  73 
(C.  C.  1897);  Smith  v.  Lee,  77  Fed. 
779  (C.  C.  1896) ;  West  v.  Eandall, 
2  Mason  181,  F.  C.  17424  (C.  C. 
1820). 

This  class  of  parties  is,  however, 
to  be  found  in  the  chancery  prac- 
tice of  the  various  states,  as  well 
as  in  the  Federal  practice.  See  the 
cases  from  the  various  states  in  the 
next  following  notes. 

A  party  may  be  necessary  in  re- 
spect to  one  form  of  relief  while 
merely  a  substantial  party  as  to 
another  relief;  in  such  cases  the 
court  will  give  the  relief  possible 
in  the  absence  of  the  party.  Canal 
Co.  V.  Gordon,  6  Wall.  561,  18  L.  ed. 
894  (1867);  Davis  v.  Davis,  89  Fed. 
532  (C.  C.  1898);  Cole,  etc.,  Co.  v. 
Virginia,  etc.,  Co.,  F.  C.  2989,  1 
Bawy.  685  (C.  C.  1871). 

Where  substantial  parties  are 
omitted,  the  bill  should  set  forth 
the  reasons  for  omitting  them,  un- 
less the  facts  forming  the  excuse 
are  apparent  on  the  face  of  the 
bill.  French  v.  Powers,  93  Ala.  114 
(1890) ;  Gilham  v.  Cairns,  1  111.  164 


(1826);  Dart  v.  Palmer,  1  Barb.  Ch. 
(N.  Y.)  92  (1845);  Willink  v.  Mor- 
ris Canal  Co.,  4  N.  J.  E.  377  (1843). 

In  Alabama  by  Chancery  Eules 
18  and  19  any  parties  who  might 
otherwise  be  necessary  or  proper 
may  be  omitted  where  they  reside 
out  of  the  jurisdiction  or  are  in- 
solvent, although  the  decree  cannot 
prejudice  their  rights.  If,  however, 
absent  parties  are  represented  by 
those  before  the  court,  the  absent 
parties  cannot  question  the  decree, 
but  may  only  come  in  and  get  the 
benefit  of  it.  Morton  v.  New  O. 
etc.,  E.  Co.,  79  Ala.  590,  610  (1895); 
Noble  V.  Gadsden,  etc.,  Co.,  133 
Ala.   250    (1901). 

68.  Traders'  Bank  v.  Campbell, 
14  Wall.  87,  20  L.  ed.  832  (1872). 
In  this  case  the  court,  after  enu- 
merating the  three  classes  of  par- 
ties described  above  in  Barney  v. 
Baltimore,  6  Wall.  280,  18  L,  ed.  825 
(1867)  (i.  e.,  formal,  substantial 
and  indispensable),  said:  "Hotch- 
kiss  &  Sons  (the  absent  persons  re- 
ferred to,  holding  another  judg- 
ment and  execution)  manifestly  be- 
long to  this  second  class  and  not 
the  third.  The  bank  is  sued  for  its 
own  wrong  in  procuring  judgment 
and  selling  the  property  and  for 
the  proceeds  now  in  its  vaults. 
Hotchkiss  &  Sons  may  or  may  not 
be  in  the  wrong  in  procuring  their 
judgment  and  levy  but  it  is  not  al- 


90 


EQUITY  PRACTICE 


It  will  be  seen  that  though  the  absent  persons  by  their 
levy  on  the  goods  had  a  material  interest  in  the  subject 
matter  (i.  e.  the  right  or  title  involved)  such  as  should 
require  their  presence  in  order  to  adjust  finally  all  inter- 
ests concerned  and  quiet  future  litigation,  yet  it  was  pos- 
sible to  leave  them  out  of  the  question  and  proceed  to  a 
decree  as  to  the  defendant  alone  without  injustice  to  any- 
one.   Their  interest,  in  short,  was  separable. 

So  where  a  j^artner  seeks  an  accounting,  he  may  have  it 
from  a  fellow  partner  who  is  within  the  jurisdiction, 
though  other  partners  are  absent,  when  the  partnership 
affairs  have  been  so  far  settled  that  there  are  no  claims 
due  to  or  from  outside  persons,  and  there  remains  merely 
the  adjustment  of  accounts  between  the  partners."^  Other 
examples  of  proper  parties  substantial  are  given  in 
the  footnote.^^" 


leged  that  they  have  received  any 
of  the  money.  If  they  are  entitled 
to  any  of  it  they  will  be  at  liberty 
to  bring  any  suit  they  may  be  ad- 
vised to  after  this  suit  is  disposed 
of,  against  the  assignee  or  anyone 
else  and  their  rights  will  not  be 
precluded  by  the  present  decree; 
nor  have  they  any  such  interest  in 
the  subject  matter  of  this  suit  that 
their  presence  is  necessary  to  the 
protection  of  the  bank.  A  com- 
plete decree  can  be  made  between 
the  bank  and  the  assignee  without 
touching  the  rights  of  Hotchkiss  & 
Sons,  or  embarrassing  the  bank  in 
its   relations   to   them." 

By  Revised  Statutes  of  the 
United  States,  Sec.  737,  and  Federal 
Equity  Rule  39,  the  Federal  courts 
have  authority  in  their  discretion 
to  proceed  without  defendants  who 
are  not  inhabitants  of  or  to  be 
found  in  the  district  of  the  forum, 
without  prejudice  to   their   rights; 


but  these  provisions  are  held  in 
effect  to  add  nothing  to  the  gen- 
eral principles  of  chancery  practice. 
California  v.  Southern  Pac.  R.  Co., 
157  U.  S.  229,  39  L.  ed.  683  (1895); 
Shields  v.  Barrow,  17  How.  140,  15 
L.  ed.  160  (1854);  Barney  v.  Balti- 
more, 6  Wall.  280,  18  L.  ed.  825 
(1867);  Chadbourne  v.  Coe,  51  Fed. 
479,  2  C.  C.  A.  327,  10  U.  S.  App. 
78   (1892). 

Equity  Rule  14  of  Rhode  Island 
is  similar. 

69.  Lawrence  v.  Rokes,  53  Me. 
110  (1865),  containing  a  careful 
discussion  of  this  point  and  the 
w^hole  subject  of  absent  defend- 
ants. 

See  §  70,  posi,  pp.  129  et  seq.,  for 
a  full  discussion  of  partners  and 
joint  owners  as  parties  to  bills  in 
equity. 

69a.  Delaware.  Farmers',  etc.. 
Bank  v.  Polk,  1  Del.  Ch.  167 
(1821). 


PARTIES 


91 


§  58.  Unknown  persons.  In  a  suit  by  several  members 
of  a  voluntary  association  against  the  defendant  and 
another  shareholder,  the  bill  alleging  that  the  rest  of  the 
shareholders  were  unknown,  it  was  held  that  the  objection 
of  want  of  parties  would  not  prevail,  since  the  interest  of 
the  absent  persons  was  separable  from  the  interests  of 
those  before  the  court."*^  So  in  a  bill  filed  against  one  of 
three  sureties,  without  making  the  other  two  co-sureties 
parties,  it  was  held  that  since  the  bill  alleged  that  the 
two  co-sureties  were  dead  and  that  their  representatives, 
if  any,  were  unknown,  this  was  prima  facie  sufficient 
ground  for  omitting  them  from  the  bill,  here  too  the 
interests  of  the  absent  persons  being  severable  J  ^     Other 


Illinois.  Webster  v.  French,  11 
111.  254   (1849). 

MicMgan.  Michigan  Bank  v. 
Hastings,  1  Dougl.  224,  41  Am.  Dec. 
549   (1844). 

Mississippi.  McPike  v.  Wells,  54 
Miss.  136  (1876). 

New  Hampshire.  Erickson  v.  Ne- 
smith,  46  N.  H.  371,  376  (1866). 

New  Jersey.  Willink  v.  Morris 
Canal,  etc.,  Co.,  4  N.  J.  E.  377 
(1843). 

Rhode  Island.  DeWolf  v.  De- 
Wolf,  4  R.  I.  450  (1857). 

Vermont.  Smith  v.  Bartholomew, 
42  Vt.  356  (1869);  Stimson  v. 
Lewis,  36  Vt.   91    (1863). 

And  see  Ellsworth  v.  McCoy,  95 
Ga.  44  (1894);  Spiney  v.  Jenkins, 
1  Ired.  Eq.  (N.  C.)  126,  where  a  bill 
was  maintained  against  one  surety 
without  making  a  co-surety,  who 
was  out  of  the  jurisdiction,  a  party. 

In  Edison  E.  L.  Co.  v.  Packard 
E.  L.  Co.,  61  Fed.  1002  (C.  C.  1893), 
officers,  agents  and  stockholders  of 
a  corporation  were  enjoined  from 
infringing,  although  the  corpora- 
tion could  not  be  made  a  party. 

In  Taylor  &  Co.  v.  Southern  Pa- 


cific Co.,  122  Fed.  147  (C.  C.  1903), 
the  plaintiff  claimed  that  the  Union 
Pacific  Railroad  Company,  a  corpo- 
ration materially  interested  in  the 
litigation,  and  named  as  a  party, 
might  be  dispensed  with  as  a  party 
because  absent  from  the  jurisdic- 
tion and  represented  by  the  South- 
ern Pacific  R.  Co.,  and  therefore 
"constructively  before  the  court." 
The  court  does  not  dispute  the  gen- 
eral principle  of  dispensability  if 
the  facts  were  as  plaintiff  claimed, 
but  holds  that  the  facts  did  not 
show  that  there  was  sufficient  iden- 
tity of  interest  between  the  rail- 
road companies. 

70.  Bailey  v.  Morgan,  13  Tex. 
342   (1855). 

71.  Davis  V.  Hoopes,  33  Miss.  173 
(1857);  see  also  Story's  Eq.  PI. 
(10th  ed.),  Sees.  90,  92. 

The  plaintiff  should  state  that 
there  are  other  defendants  whose 
names  are  unknown  to  him,  and 
should  pray  discovery  of  their 
identity.  Cobb  v.  Hawsey  56  Fla. 
159  (1908),  statutory;  West  v. 
Randall,  F.  C.  17,424,  2  Mason  181 
(C.  C.   1820). 


92 


EQUITY  PRACTICE 


examples  of  persons  omitted  because  unknown  are  given 
in  the  footnote. '- 

§  59.  Numerous  persons.  The  cases  where  of  numer- 
ous persons  having  a  material  interest,  a  portion  may  be 
dispensed  with  as  parties,  rest  on  the  principle  of  virtual 
representation,'^^  i.  e.,  the  principle  that  where  a  large 


It  is  said  in  Wescott  v.  Minne- 
sota, etc.,  Co.,  23  Mich.  145  (1871), 
that  the  omitted  parties  must  not 
only  be  unknown,  but  must  be  such 
that  the  plaintiff  with  reasonable 
diligence  could  not  find  them.  But 
see  Davis  v.  Hoopes,  33  Miss.  173, 
above,  and  in  Alger  v.  Anderson, 
78  Fed.  729  (C.  C.  1897),  it  was 
said  that  where  the  bill  shows  that 
certain  persons  are  unknown  to 
the  plaintiff,  the  case  may  go  on 
without  them  as  parties,  in  the 
absence  of  any  statement  of  fact 
in  the  answer  denying  this  allega- 
tion of  the  bill. 

A  statutory  provision  permitting 
unknown  persons  interested  in  the 
subject  matter  to  be  named  as  ' '  un- 
known owners ' '  must  not  be 
evaded  by  making  a  known  per- 
son a  party  under  that  designation. 
Wellington  v.  Heermans,  110  111. 
564  (1884).  Or  a  party  who  can 
easily  be  ascertained.  Seymour  v. 
Edwards,  31  111.  App.  50  (1889). 

72.  Illinois.  Eyan  v.  Lynch,  68 
111.  160  (1873);  Whitney  v.  Mayo, 
15  111.  252  (1855). 

Michigan.  Holcomb  v.  Mosher, 
50  Mich.  252,  15  N.  W.  129  (1883). 

Mississippi.  Reed  v.  Gregory,  46 
Miss.  740  (1873);  Boisgerard  v. 
Wall,  1  S.  &  M.  Ch.  (Miss.)  404 
(1843). 

New  Jersey.  Deposit,  etc.,  Co. 
V.  Dialogue,  75  N.  J.  E.  600  (1909); 
Butler  V.  Farry,  68  N.  J.  E.  760 
(1906). 


Pennsylvania.  Seibert  v.  Dreisch, 
12  Lane.  L.  R.  (Pa.)   137   (1895). 

Rhode  Island.  DeWolf  v.  De- 
Wolf,  4   R.  I.  450    (1857). 

Virginia.  Moore  v.  George,  10 
Leigh  (Va.)  228  (1839;. 

See  also  cases  under  §  59,  post, 
in  many  of  which  omitted  parties 
were  also  "unknown." 

73.  Florida.  McCullom  v.  Mor- 
rison, 14  Fla.  414  (1874). 

Illinois.  Warfield,  etc.,  Co.  v. 
Williamson,  233  111.  487   (1908). 

Maine.  Carlton  v.  Newman,  77 
Me.  408   (1885),  bill  of  peace. 

Maryland.  Leviness  v.  Gas,  etc., 
Co.  114  Md.  559  (1911). 

Massachusetts.  Willcutt,  etc., 
Co.  V.  Driscoll,  200  Mass.  110 
(1908),  defendant  labor  union  rep- 
resented by  officers;  Hill  v.  Barn- 
ard, 152  Mass.  67,  9  L.  R.  A.  211 
(1890);  Smith  v.  Williams,  116 
Mass.  510  (1875) ;  Shaw  v.  Norfolk 
Co.  R.  Co.,  5  Gray  (Mass.)  170 
(1855). 

Mississippi.  Goldman  v.  Page, 
59  Miss.  404  (1882);  Boisgerard  v. 
Wall,  1  S.  &  M.  Ch.  404  (1843). 

New  Jersey.  Deposit,  etc.,  Co. 
v.  Dialogue,  75  N.  J.  E.  600  (1909). 

Pennsylvania.  Powel  v.  Dunn, 
21  Pa.  C.  C.  65  (1898);  Hill  v.  Ken- 
sington Comrs,  1  Pars.  501   (1850). 

Bhode  Island.  Vernon  v.  Reyn- 
olds, 20  R.  L  552  (1898).  See 
Equity  Rule  15. 

Tennessee.  Brown  v.  Brown,  86 
Tenn.  277,  314  (1888). 


PARTIES 


93 


number  of  persons  liave  a  common  interest,  a  portion  of 
the  number  bringing  a  bill  or  defending  in  behalf  of 
themselves  or  others  may  fairly  be  taken  to  represent  the 
whole  so  that  a  decree  can  be  rendered  in  the  case  with- 


Virginia.  See  the  statutory  pro- 
visions relating  to  cases  in  equity 
where  the  parties  exceed  thirty  in 
number,  Code  1904,  §3313. 

Vermont.  Darling  v.  Osborne, 
51  Vt.  148  (1878);  Stimson  v. 
Lewis,  36  Vt.  91  (1863). 

West  Virginia.  Northwestern 
Bank  v.  Hays,  37  W.  Va.  475 
(1892),  statutory.  And  see  the 
statutory  provisions.  Code  1913, 
§  4840. 

United  States.  United  States  v. 
Old  Settlers,  148  U.  S.  427,  37  L. 
ed.  509  (1893);  Smith  v.  Sworm- 
stedt,  16  How.  288,  14  L.  ed.  942 
(1853);  Beatty  v.  Kurtz,  2  Pet. 
566,  7  L.  ed.  521  (1829);  Watson 
v.  Nat.  Life,  etc.,  Co.,  162  Fed.  7 
(C.  C.  A.  1908) ;  Evenson  v.  Spauld- 
ing,  150  Fed.  523,  affirming  149 
Fed.  913,  916  (1907);  Yardley  v. 
Philler,  58  Fed.  746  (C.  C.  1893). 
In  the  last  named  case  a  man- 
aging committee  were  held  prop- 
erly representative  of  a  defendant 
voluntary  clearing  house  associ- 
ation. See  also  the  express  provi- 
sions of  Federal  Equity  Rule  38. 

See  also  Mitford  and  Tyler's  Eq. 
PI.,  p.  22;  1  Dan.  Ch.  Pr.  (6th  Am. 
ed.)  p.  191;  Adams'  Eq.  (5th  Am. 
ed.)  621;  Story's  Eq.  PI.  (10th  ed.) 
§107. 

Prof.  Tyler  (in  Mitford  &  Ty- . 
ler's  Eq.  PI.  p.  22)  says  "Courts 
of  equity,  in  applying  the  general 
principle  in  regard  to  parties  to  a 
suit,  never  allow  it  to  produce  an 
inconvenience,  in  the  adjustment 
of    rights,    which    can    safely    be 


avoided.  With  this  view,  they 
have  established  a  rule  founded 
upon  the  doctrine  of  representa- 
tion. It  sometimes  happens  that 
compliance  with  the  principle 
which  requires  the  joinder  in  a 
suit  in  equity  of  all  parties  inter- 
ested in  the  matters  in  controversy 
is  practically  impossible  because 
the  persons  interested  are  too  in- 
definite or  too  numerous  to  be  in- 
dividually joined  in  the  suit.  In 
such  case,  the  principle  in  its  ap- 
plication is  modified  upon  the  doc- 
trine of  representation,  so  that  one 
or  more  members  of  a  class  may 
sue  or  be  sued  on  behalf  of  the 
whole,  provided  the  interest  of 
every  absent  member  in  the  claim 
made  or  resisted  is  identical  with 
that  of  those  who  are  personally 
before  the  court."  Judge  Story, 
while  apparently  applying  this 
principle  of  representation  in  bills 
by  members  of  voluntary  associ- 
ations (10th  ed.,  §  97)  does  not 
seem  to  recognize  it  as  the  funda- 
mental basis  on  which  all  these 
cases  rest. 

Mr.  Street  in  his  Federal  Equity 
Practice,  page  343,  says:  "The 
true  class  suit  in  fact  supplies  an 
instance  of  virtual  representation. 
When  the  court  once  gets  jurisdic- 
tion of  the  subject-matter,  it  will 
proceed  to  clean  up  every  element 
of  the  controversy,  as  it  affects 
each  and, every  party  in  interest; 
and  to  the  end  all  that  is  necessary 
is  that  the  different  persons  in  in- 
terest shall  be  before  the  court 
either  in  person   or  by  representa- 


94 


EQUITY  PRACTICE 


out  prejudice  to  the  rights  of  the  absent.  The  interest 
in  question  must  be  a  community  of  interest  in  the  subject 
matter  of  the  suit,  i.  e.,  in  the  estate,  title  or  right 
involved  in  the  controversy,  and  it  matters  not  whether 
it  be  a  community  of  interest  "^  in  the  same  property  or 
separate  and  distinct  property  interests  having  a  common 
interest  in  the  enforcement  or  defeat  of  the  right 
involved  in  the  controversy,  provided  that  the  success 
of  the  portion  bringing  the  bill  or  defending  in  behalf 
of  the  others  will  benefit  all  alike.  But  in  such  case,  the 
bill  must  be  brought  in  behalf  of  the  plaintiff  and  all 
others  of  like  interest,  and  it  should  be  alleged  in  the 
bill  that  it  is  thus  brought  '^  since  the  parties  are  too 


tion.  .  .  .  The  jurisdiction  of 
the  court  over  the  subject-matter 
enables  the  court  to  determine  the 
rights  of  all  persons  to  the  prop- 
erty, provided  only  they  are  suffi- 
ciently represented  before  the 
court." 

The  citizenship  of  the  individ- 
ual members  of  a  partnership  as- 
sociation created  by  the  laws  of 
Pennsylvania  must  be  alleged  in 
a  suit  by  that  association  in  a 
Federal  court,  where  jurisdiction 
depends  upon  diverse  citizenship 
of  the  parties,  although  by  the 
Pennsylvania  statute  the  associ- 
ation may  sue  or  be  sued  by  their 
association  name,  the  officers  act- 
ing for  the  association.  Great 
Southern  Fireproof  Hotel  Co.  v. 
Jones,  177  U.  S.  449,  44  L.  ed.  342 
(1900),  overruling  Andrews  Bros. 
Co.  v.  Youngstown  Coke  Co.,  86 
Fed.  586,  58  U.  S.  App.  444  (1898). 

74.  Thus  in  the  following  eases 
there  was  said  to  be  a  lack  of  a 
common  interest:  Beecher  v.  Fos- 
ter, 51  W.  Va.  605  (1902);  Ayres 
V.  Carver,  17  How.  591,  15  L.  ed. 
179    (1854);    Georgetown    v.    Alex. 


Canal  Co.,  12  Pet.  91,  9  L.  ed.  1012 
(1838),  municipal  corporation  at- 
tempting on  behalf  of  its  inhab- 
itants to  enjoin  a  nuisance;  Baker 
V.  Portland,  5  Sawy.  566,  F.  C.  777 
(C.   C.  1879). 

It  is  always  a  question  in  the 
case  whether  those  who  are  made 
parties  are  sufficiently  representa- 
tive of  those  not  made  parties. 
American  Steel,  etc.,  Co.  v.  Wire 
Drawers,  etc.,  Unions,  90  Fed.  398 
(C.  C.  1898).  Any  deviation  from 
this  requirement  is  proper  ground 
to  be  considered  on  the  question  of 
opening  the  decree,  and  a  court 
will  not  tolerate  any  conduct  on 
the  part  of  those  who  are  parties 
which  tends  improperly  to  lull  into 
inaction  those  whom  they  repre- 
sent. Campbell  v.  Texas,  etc.,  R. 
Co.,  F.  C.  2,366,  1  Woods  368  (C. 
C.  1871). 

75.  Story's  Eq.  PI.  (10th  ed.) 
Sees.  95,  116;  1  Dan.  Ch.  Pr.  (6th 
ed.)  p.  245;  Levy  v.  Taylor,  24  Md. 
282  (1865);  Westcott  v.  Minnesota, 
etc.,  Co.,  23  Mich.  145  (1871); 
Childs  V.  N.  B.  Carlstein  Co.,  76 
Fed.  86  (C.  C.  1896). 


PARTIES 


95 


numerous  to  do  otherwise.  If  brought  solely  in  behalf 
of  the  plaintiff,''^  or  nominally  in  behalf  of  all,  but  seek- 
ing to  establish  an  individual  right  of  the  plaintiff's, 
adverse  and  exclusive  in  its  nature,'^  all  whose  interests 
will  be  affected  must  be  made  technical  parties  or  the  bill 
will  not  be  sustained.'^  The  rights  of  the  absent  ones  can 
only  be  bound  by  the  decree  of  the  court  where  all  have  a 
common  interest  so  that  a  portion  before  the  court  may 
fairly  be  taken  to  represent  all.'^*' 


76.  Story's  Eq.  PI.  (10th  ed.) 
Sees.  103,  126;  Bishop  v.  Covvden,  5 
Montg.  Co.  (Pa.)  151  (1889);  Hill 
V.  Kensington  Comm'rs,  1  Pars. 
(Pa.)  501  (1850). 

77.  Story's  Eq.  PL  (10th  ed.) 
Sees.  101,  133  and  158.  It  seems 
that  the  bill  may  be  brought  in 
behalf  of  all  and  minor  differences 
of  priority  and  the  like  determined 
before  the  master.  See  Story 's  Eq. 
PI.   (10th  ed.)  Sec.  158. 

78.  Story's  Eq.  PL  (10th  ed.) 
Sees.  98  and  107. 

So  in  McArthur  v.  Scott,  113  U. 
S.  340,  28  L.  ed.  1015  (1885),  the 
present  plaintiffs,  unborn  grand- 
children at  the  time  of  a  previous 
proceeding,  were  not  bound  by  the 
decree  therein,  there  having  been 
no  allegation  in  the  original  bill 
that  there  were  or  might  be  others 
of  similar  interest  to  the  grand- 
children then  before  the  court. 
Compare  Miller  v.  Texas  E.  Co., 
132  U.  S.  662,  33  L.  ed.  487  (1890); 
Banks  v.  Taylor,  53  Fed.  854,  867, 
4  C.  C.  A.  55,  9  U.  S.  App.  406 
(1893). 

79.  Hale  v.  Hale,  146  111.  227,  256 
(1893);  Farmers'  Loan  &  T.  Co.  v. 
Lake,  etc.,  R.  R.  Co.,  68  111.  App. 
166  (1896);  Harrison  v.  Wallton, 
95  Va.  721  (1898);  Wallace  v. 
Adams,  204  U.  S.  415,  51  L.  ed.  547 


(1907);  McArthur  v.  Scott,  113  U. 
S.  340,  23  L.  ed.  1015  (1885); 
Coann  v.  Atlanta  Cotton  Factory, 
14  Fed.  4  (C.  C.  1882). 

Where  a  plaintiff  has  sued  for 
himself  and  others,  the  defendant 
may  sometimes  have  an  order  that 
persons  failing  to  come  in  within 
a  certain  time  after  notice  is  given 
will  be  barred  from  participating 
in  the  recovery.  Smith  v.  Bank  of 
New  England,  69  N.  H.  254  (1898). 

This  principle  of  representation 
is  the  key  to  the  question  whether 
or  not  the  interest  of  an  absent 
defendant  is  bound  by  a  decree. 
In  the  ordinary  case  of  a  proper 
party  substantial  who  is  out  of  the 
jurisdiction  and  whose  interest  is 
separable,  he  is  not  of  course  bound 
by  the  decree,  but  where  the  par- 
ties not  before  the  court  have  such 
a  common  interest  with  those  be- 
fore the  court  that  the  determina- 
tion of  rights  involved  affect  all 
alike,  a  few  before  the  court  may 
then  be  fairly  taken  to  represent 
all  and  consequently  all  will  be 
bound  by  the  decree.  See  Story's 
Eq.  PL  (10th  ed.)  Sec.  94;  Dan. 
Ch.  Pr.  (6th  Am.  ed.)  p.  191;  Mit- 
ford's  Eq.  PL  by  .leremy,  167,  171; 
Barker  v.  Walters,  8  Beavan,  92; 
Farrell  v.  Smith,  2  Ball.  &  B.  337, 
341,   342;   Kenyon   v.  Worthington, 


96 


EQUITY  PRACTICE 


The  chief  classes  of  cases  of  numerous  persons  repre- 
sented by  a  few  are  creditors'  bills,  stockholders'  bills  and 
bills  of  peace. 

§  60.  Creditors'  bills.  Where  numerous  creditors  of  a 
debtor  have  a  like  interest  in  reaching  and  applying  a 
common  fund  or  a  particular  piece  of  property  for  the 
benefit  of  all  the  creditors,  one  or  more  creditors  may 
maintain  what  is  known  as  a  general  creditors'  bill  in 
behalf  of  themselves  and  all  others  having  a  like  interest 
or  object.^"  So  where  there  are  a  number  of  creditors 
who  are  parties  to  a  deed  of  trust  for  the  payment  of 


2  Dick.  668;   Hallett  v.   Hallett,  2 
Paige  (N.  Y.)  18,  20  (1829). 

In  Barker  v.  Walters,  8  Beavan 
92,  the  court  said:  "My  impres- 
sion is  that  in  cases  where  a  com- 
pany have  authorized  others  to 
enter  into  obligations  for  them  and 
have  thus  placed  them  in  a  situ- 
ation of  responsibility  to  third  par- 
ties, and  those  persons  have  come 
to  this  court  and  sought  relief  in 
the  name  and  for  the  benefit  of  all, 
but  their  suit  has  been  dismissed, 
my  impression,  I  repeat,  is,  that  this 
court  would  not  allow  other  mem- 
bers to  prosecute  another  suit  for 
the  same  object." 

80.  Alabama.  Thornton  v.  Tison, 
95  Ala.  589  (1891);  Brown  v. 
Bates,  10  Ala.  432  (1846). 

Illinois.  Ballentine  v.  Beall,  4 
111.  203    (1841). 

Maine.  Mason  v.  E.  E.  Co.,  52 
Me.  108  (1863);  Haughton  v. 
Davis,  23  Me.  34  (1843). 

Massachusetts.  Libby  v.  Norris, 
142  Mass.  246   (1886). 

New  Jersey.  Dobbins  v.  Coles, 
45  Atl.  442  (N.  J.  E.  1898) ;  Way  v. 
Bragaw,  16  N.  J.  E.  213  (1863). 

Tennessee.  Bank  v.  Haselton, 
15  Lea  (Tenn.)  216  (1885). 

Virginia.    Paxton  v.  Eich,  85  Va. 


378  (1888);  Piedmont,  etc.,  Co.  v. 
Maury,  75  Va.  508  (1881). 

West  Virginia.  Neely  v.  Jones, 
16  W.  Va.  625,  37  Am.  Eep.  794 
(1880). 

United  States.  Johnson  v. 
Waters,  111  U.  S.  640,  28  L.  ed. 
547  (1884);  Belmont  Nail  Co.  v. 
Columbia  Iron,  etc.,  Co.,  46  Fed. 
336   (C.  C.  1891). 

See  also  Story's  Eq.  PI.  (10th 
ed.)  Sec.  99.  The  creditors'  bill 
referred  to  by  Judge  Story,  how- 
ever, is  the  general  chancery  bill 
against  the  executor  or  adminis- 
trator of  a  deceased  debtor  where 
the  court  would  take  the  whole  ad- 
ministration of  an  estate.  But  as 
has  been  shown  the  subject  of  ad- 
ministration has  been  withdrawn 
from  the  equity  powers  of  our 
courts  in  most  states  and  placed 
under  the  exclusive  jurisdiction  of 
the  probate  courts  (except  in  cer- 
tain cases  involving  special  equit- 
able features)  and  consequently 
these  general  creditor's  bills 
against  administrators  and  execu- 
tors can  not  now  be  maintained  in 
these  states.  The  same  is  true  of 
the  analogous  bills  by  legatees  and 
distributees  referred  to  by  him  in 
Sees.  104,  105. 


PARTIES 


97 


debts,  a  few  may  sue  in  belialf  of  themselves  and  the 
other  creditors  named  in  the  deed  to  enforce  the  execution 
of  the  trust.*^^  Likewise  where  there  are  numerous 
holders  of  bonds  secured  by  a  certain  corporation  mort- 
gage, a  few  of  the  bondholders  may  sue  to  enforce  the 
bonds  in  behalf  of  themselves  and  all  other  holders.^^ 

Another  modern  instance  of  creditors'  bills  is  the  bill 
brought  by  one  or  more  creditors  in  behalf  of  themselves 
and  all  other  creditors  against  a  corporation  alleged  to 
be  insolvent,  asking  for  the  appointment  of  a  receiver 
on  the  ground  that  the  assets  are  being  wasted  through 
fraud  or  mismanagement.^^     A  bill  may  be  brought  in 


81.  Smith  V.  Williams,  116  Mass. 
510  (1875).  See  Story's  Eq.  PI. 
(10th  ed.)   Sec.  102. 

82.  Carter  v.  Eodewald,  108  111. 
351  (1884);  Mason  v.  E.  E.  Co., 
52  Me.  108  (1863) ;  Libby  v.  Norris, 
142  Mass.  246  (1886);  Bank  v. 
Salisbury,  130  Mass.  303  (1881); 
Sehultze  v.  Van  Doren,  64  N.  J. 
E.  465  (1903). 

' '  Eailroad  mortgages  are  a  pe- 
culiar class  of  securities  in  which 
the  trustee,  expressly  or  impliedly, 
represents  the  bondholders,  and  it 
is  his  duty  to  enforce  their  rights 
and  to  protect  their  interest  under 
the  trust.  He  is  the  proper  party 
to  bring  a  suit  for  the  foreclosure 
of  such  motgage  deed,  or  to  protect 
or  to  recover  the  mortgage  prop- 
erty, and  a  bondholder  cannot 
bring  such  suit  unless  the  trustee 
has  been  requested  to  do  so,  and 
has  refused  or  neglected  so  to  do 
within  a  reasonable  time,  or  is  in 
a  position  where  he  is  unable  to 
act."  Va.  Pass.  &  P.  Co.  V.  Fisher, 
104  Va.  121  (1905). 

83.  See  Clark  &  Marshall  on  Cor- 
porations Sees.  2335,  et  seq.;  Cook 
on  Corporations  (6th  ed.).  Sees.  863 

Whitehouse  E.  P.  Vol.  I — 7 


et  seq.;  Beach  on  Private  Corpora- 
tions, Sec.  715;  and  other  text 
books  on   corporations. 

In  all  these  cases  of  bills  by  a 
few  creditors  in  behalf  of  them- 
selves and  others,  the  decision  of 
the  court  as  to  the  success  or  fail- 
ure of  the  common  interest  or  ob- 
ject is  final  and  binding  upon  all 
absent  plaintiffs,  though  they  were 
never  technically  made  parties;  but 
as  to  the  distribution  of  the  prop- 
erty in  question  among  the  differ- 
ent claimants,  it  is  otherwise.  Ac- 
cording to  the  ancient  chancery 
practice  in  general  creditors'  bills 
against  the  administrator  or  execu- 
tor of  a  deceased  debtor,  which 
would  without  doubt  be  the  same 
in  any  general  creditors'  bill,  the 
other  parties  not  before  the  court 
may  come  in  under  the  decree  and 
prove  their  debts  before  the  mas- 
ter to  whom  the  cause  is  referred 
and  obtain  satisfaction  of  their  de- 
mands equally  with  the  plaintiffs 
in  the  suit.  (See  Libby  v.  Norris, 
142  Mass.  246,  248  (1886).)  If, 
however,  any  neglect  or  decline  to 
come  in  before  the  master,  after 
due    notice    and    opportunity,    they 


98 


EQUITY  PRACTICE 


like  manner  against  the  corporation  and  delinquent  stock- 
holders to  recover  unpaid  subscriptions  from  the  latter.'^^ 


will  be  excluded  from  the  benefit 
of  the  decree  and  will  be  bound  by 
all  acts  of  distribution  done  un- 
der the  authority  of  the  court. 
(Story's  Eq.  PI.  (10th  ed.)  Sec.  99.) 
On  the  other  hand  if  some  of  the 
parties  are  unknown,  or  it  is  im- 
possible to  reach  them  with  notice, 
or  if  for  any  reason  they  have  not 
had  a  fair  opportunity  to  come  in 
before  the  master,  though  they  have 
no  remedy  against  the  debtor  yet 
they  are  not  entirely  concluded  but 
still  have  a  right  to  assert  their 
claim  to  a  share  in  the  property 
against  the  creditors  who  have  re- 
ceived it  and  recover  it  from  them. 
In  either  event  the  court  will  pro- 
tect the  defendant  debtor,  against 
any  further  litigation.  See  Story  's 
Eq.  PI.  (10th  ed.)  Sec.  106;  Hal- 
lett  V.  Hallett,  2  Paige  (N.  Y.)  18, 
19    (1829). 

In  strict  adherence  to  the  rule 
that  the  one  or  more  bringing  the 
bill  must  have  an  interest  in  com- 
mon or  identical  with  all  the 
others  it  has  been  held  that  if  the 
plaintiff  creditor  seeks  to  establish 
a  priority  of  right  or  a  mortgage 
debt  he  cannot  file  a  bill  in  behalf 
of  all  the  creditors.  (See  Story's 
Eq.  PI.  (10th  ed.),  Sees.  101,  133.) 
On  the  other  hand  there  are  more 
recent  authorities  to  the  contrary 
(see  Story's  Eq.  PI.  Sec.  101  last 
part  and  notes  and  Sec.  158)  and 
while  the  latter  may  at  first  seem 
to  contravene  the  fundamental 
principles  of  identity  of  interest 
and  representation  underlying  these 
cases,  they  may  be  supported  on 
the  ground  that  the  community  of 
interest   required   is   found   in   the 


common  interest  of  all  the  creditors 
in  the  determination  of  the  gen- 
eral right  of  the  creditors  as  a 
whole  to  the  property  in  question 
and  to  its  distribution  among  them. 
When  it  comes  to  proving  their 
respective  claims  before  the  mas- 
ter, even  in  the  unquestioned  cases 
where  all  are  simply  creditors 
claiming  no  priority,  the  interest 
of  each  one  is  necessarily  adverse 
to  that  of  the  other,  to  prevent  im- 
proper claims  or  claims  for  more 
than  is  due  being  allowed,  and  a 
disputed  claim  of  priority  is  a 
claim  no  more  adverse  m  its  nature 
than  a  claim  disputed  on  the 
ground  of  its  illegality  or  exces- 
sive amount.  The  primary  ques- 
tion which  the  court  decides  is  the 
general  right  of  the  creditors  to 
go  before  the  master.  (See  Whit- 
taker  V.  Wright,  2  Hare  (Eug. 
Ch.)  310,  312,  314  (1843).)  Up  to 
that  point  there  is  an  identity  of 
interest  and  up  to  that  point  the 
principle  of  representation  is  ap- 
plicable and  useful.  The  hearing 
before  the  master  is  almost  a  sep- 
arate proceeding  with  its  sepa- 
rate notices  to  each  known  creditor 
to  come  in  and  represent  himself, 
and  absent  ones  are  bound  by  the 
result  only  on  the  conditions  above 
stated.  If,  however,  the  interest 
of  the  one  bringing  the  bill  is  ad- 
verse as  to  the  primary  question 
involved,  or  necessarily  exclusive 
of  all  other  interests,  the  principle 
of  representation  clearly  cannot  be 
applied. 

84.  Statutory  provisions  in  the 
various  states  govern  the  method 
of    bringing    these    suits    and    the 


PARTIES 


99 


§61.  Stockholders'  bills.  Members  of  voluntary  asso- 
ciations of  any  kind  and  stockholders  in  corporations  are 
usually  numerous,  and  when  involved  in  litigation  the 
interests  of  all  or  large  portions  of  them  are  apt  to  be 
identical.  Consequently  one  or  more  members  or  stock- 
holders is  allowed  to  bring  his  bill  in  behalf  of  himself 
and  all  others  of  like  interest.^^  Likewise  where  a  suit 
would  otherwise  have  to  be  brought  against  numerous 
members  or  stockholders,  if  their  interests  are  in  com- 
mon, a  few  constituting  a  fairly  representative  portion 
of  the  whole  may  defend  in  behalf  of  themselves  and  all 
others  of  like  interests.  ^^ 


circumstances  under  whicli  they 
can  be  brought.  See  Clark  & 
Marsh.  Corporations,  Sees.  2348  et 
seq. ;  Beach  on  Private  Corpora- 
tions, Sec.  698,  and  other  text 
boolis  on  corporations.  A  recent 
leading  case  is  Schaub  v.  Welded 
Barrel  Co.,  130  Mich.  606  (1902). 
See  also  Martin  v.  South  Salem 
Land  Co.,  94  Va.  28  (1896). 

85.  See  Story's  Eq.  PI.  (10th  ed.), 
Sees.  107,  116,  examples  there 
cited,  and  discussion  of  stock- 
holders' bills  in  text  books  on  cor- 
porations. Many  of  the  cases  cited 
under  §  59,  a7ite,  p.  92,  are  exam- 
ples of  this  class  of  case.  See 
also  the  following  cases  on  volun- 
tary associations:  Guilfoil  v.  Ar- 
thur, 158  111.  600  (1895);  Mc- 
Padden  v.  Murphy,  149  Mass.  341 
(1889);  Birmingham  v.  Gallegher, 
112  Mass.  190  (1873);  Coffman  v. 
Sangston,  21  Gratt.  (Va.)  263 
(1871). 

In  Crumlish  v.  Shenandoah,  etc., 
E.  Co.,  28  W.  Va.  623  (1886),  a 
stockholder  of  a  dissolved  corpora- 
tion brought  a  bill  in  behalf  of 
himself  and  other  stockholders  to 
compel  defendant  to  turn  over 
property  of  the  corporation. 


It  is  equally  true  in  this  class 
of  cases  as  in  creditors '  bills  that 
there  must  be  a  thorough  commu- 
nity of  interest  between  all  who  are 
upon  the  same  side  of  the  case, 
and  it  has  been  held  that  in  bills 
seeking  dissolution  each  has  an  in- 
dividual interest  and  right  to  be 
beard  and  a  bill  cannot  be  brought 
by  a  few  in  behalf  of  all  but  all 
must  be  made  technical  parties. 
See  Story's  Eq.  PI.  (10th  ed.)  Sees. 
130,  135.  But  this  seems  unneces- 
sary. Where  there  are  large  num- 
bers of  stockholders  having  op- 
posite interests  there  is  no  reason 
whatever  on  principle  why  a  few 
constituting  a  representative  por- 
tion of  one  interest  should  not  be 
allowed  to  bring  their  bill  in  their 
own  behalf  and  all  others  of  like 
interest.  This  is  supported  in  prac- 
tice by  decisions.  See  Story's  Eq. 
PI.  (10th  ed.)  Sec.  35b,  citing: 
Wallworth  v.  Holt,  4  Myl.  &  Cr. 
619,  634-640;  Cooper  v.  Webb,  15 
Sim.  454;  Lovell  v.  Andrew,  15 
Sim.  581;  Apperly  v.  Page,  1  Phill. 
779;  Sharp  v.  Day,  1  Phill.  771; 
Eichardson  v.  Larpent,  2  Y.  &  C. 
Ch.   507,   512-514. 

86.  Story's    Eq.    PI.     (10th    ed.) 


100  EQUITY  PRACTICE 

§  62.  Bills  of  peace.  Tlie  third  instance  of  the  applica- 
tion of  this  principle  of  representation  in  cases  where  the 
parties  are  numerous,  is  what  is  called  a  bill  of  peace, 
where  a  large  number  of  plaintiffs,  though  having  no 
priority  of  property  interest,  have  a  common  object  in 
seeking  to  establish  a  general  right  against  one  or  more 
defendants,  or  where  one  or  more  plaintiffs  seek  to  en- 
force a  right  which  a  large  number  of  defendants,  though 
having  distinct  property  interests,  have  a  common  object 
in  defeating.  In  either  of  these  two  forms  ^'^  of  bills  of 
peace  one  or  more  may  sue  or  defend  in  behalf  of  all  the 
others.^^  For  example,  where  one  of  several  owners  of 
distinct  parcels  of  land  upon  which  the  same  illegal 
assessment  of  tax  has  been  laid  brings  his  bill  in  behalf 
of  all  to  resist  the  tax;  ^^  on  the  other  hand  (in  an  early 
case)  where  the  city  of  London  brought  a  bill  to  establish 
its  right  to  a  certain  tax  on  imports  and  the  bill  was 
sustained  against  a  few  merchants  only,  in  spite  of  the 


Sees.  116,  119,  citing:  Adair  v.  New  87.  These     are     the     third     and 

Kiver   Co.,   11   Ves.   444;    Cullen   v.  fourth  classes  of  bills  of  peace  as 

(^ueeusberry,  1  Bro.  Ch.  101,  1  Bro.  shown  by  Pomeroy's  Eq.  Jurispr., 

I'.  C.  o96;  Cousins  v.  Smith,  13  Ves.  Sec.   245,   also   known   as   bills   for 

544;    Wood    v.    Dunimer,    3    Mason  prevention     of    a    multiplicity     of 

315-319,  F.  C.  17,944   (C.  C.  1824) ;  suits. 

Milbark  v.  Collier,  1  Coll.  237.     A  88.  Story's    Eq.    PI.    (10th    ed.) 

leading  recent  case  is  Eeynolds  v.  Sees.    124,    125,    citing:    Tenham   v. 

Davis,  198  Mass.  294  (1908),  where  Herbert,  2  Atk.  484;  West  v.  Ran- 

it  is  said  that  though  an  unincor-  dall,  2  Mas.  194,  195;  York  v.  Pilk- 

porated  trade  union  cannot  as  such  ington,  1   Atk.  282,  284;   Weale  v. 

be    made     a    party    defendant    in  West  Middlesex  Water  Works  Co., 

equity,    yet    the    members    thereof  1  Jac.  &  W.  369;  Mitf.  Eq.  PI.  by 

may    be    brought    in    by    making  Jeremy,  144,  146. 

proper    persons    parties    as    repre-  89.  Pickett  v.  Russell,  42  Fla.  116 

sentatives  for  all,  where  the  mem-  (1900);   City  of  Chicago  v.  Collins 

bers   are   too    numerous   for   all   to  et  al.,  175  111.  445  (1898);  Johnson 

be  joined.     Compare  Chicago  Typo.  v.  Black,  103  Va.  477  (1905).     See 

Union  v.  Barnes  &  Co.,  134  111.  App.  also   Pomeroy's    Eq.   Jurispr.,    Sec. 

11  (1907),  stating  that  a  voluntary  245. 
association  may  in  Illinois  be  sued 
as  such  without  joining  individual 
members. 


PARTIES  101 

fact  that  all  the  subjects  of  the  realm  might  be  inter- 
ested.»" 

§  63.  Persons  represented  and  persons  with  separable 
interests.  It  will  be  seen  from  the  preceding  sections  that 
when  persons  having  a  material  interest  are  dispensable 
as  parties  because  of  the  impracticability  of  joining  them 
by  reason  of  their  absence  from  the  jurisdiction,  their 
number,  or  their  unknown  nature,  the  persons  before  the 
court  will  be  found  either  to  represent  the  absent  persons, 
or  to  have  clearly  severable  interests.  These  two  prin- 
ciples of  representation  and  severability  have  however  an 
application  wider  than  merely  to  the  three  cases  men- 
tioned. It  will  be  shown  below  ^^  that  an  interest  may  be 
separable  to  such  a  degree  that  it  becomes  immaterial  to 
the  controversy;  the  person  having  such  an  interest  is  an 
improper  party  to  the  litigation,  and  should  not  be 
joined.  But  in  many  cases  there  will  be  found  absent 
interests  which,  while  not  so  completely  separable  as  to 
be  immaterial,  are  yet  so  far  obviously  separable,  that 
the  court  approves  the  omission  of  the  person,  with  little 
if  any  showing  that  joinder  would  be  impracticable,  and 
without  specifying  whether  the  person  if  included  would 
be  a  proper  or  an  improper  party.  This  is  the  case  when 
the  nature  of  the  relief  which  is  sought  by  the  bill  separ- 
ates the  interests  of  persons  who  might  otherwise  be 
necessary  parties  to  the  litigation.  For  instance,  where 
the  bill  seeks  only  for  a  contribution  pro  rata  towards  a 
common  demand,  and  the  extent  of  liability  is  clearly 
ascertained  and  admittedly  requires  an  equal  apportion- 
ment, the  court  will  not  require  the  joinder  of  other  per- 
sons  who   might   have    been   joined    as    contributors.^^ 

90.  London    v.    Perkins    4    Bro.  Equity   Jurisprudence    and    similar 

Pari.  Cas.  158,  3  Brown  P.  C.  602.  works     discuss    the     subject    with 

Cases    on    bills    of    peace    are    of  care. 

course  cases  rather  on  substantive  91.  See  §  64A,  post,  p.  106. 

law  than  on  procedure,  and  hence  92.  Story's    Eq.    PI.     (10th    ed.) 

no   attempt   is   made    here    to   cite  Sec.  127-129,  ct/M?<7:    Mitf.  Eq.  PI.  by 

references    in    detail.      Pomeroy's  Jeremy,   179,   ISO;   Howes   v.   Wad- 


102  EQUITY  PRACTICE 

Another  example  is  where  the  bill  waives  a  particular 
claim,  thus  making  an  interest  dispensable  which  other- 
wise might  be  necessary.'-'-^  But  suits  of  neither  of  these 
kinds  may  be  carried  on  to  the  prejudice  of  absent 
persons. 

On  the  other  hand,  an  absent  person  may  be  so  clearly 
represented  by  one  who  is  before  the  court,  that  his 
joinder  would  serve  no  useful  purpose.  Such  a  person  is 
an  improper  party.  In  many  cases,  however,  the  omitted 
jDersons  are  not  so  clearly  represented  by  parties  in  court 
that  the  court  would  hold  them  improper  if  they  were 
parties,  nevertheless  the  court  will  allow  the  omission 
without  requiring  much  if  any  showing  that  it  would  be 
impracticable  to  join  them.  In  such  case,  the  absent  per- 
sons may  be  said  to  be  constructively  before  the  court. 
It  has  been  said  by  the  Federal  courts,  following  Mallow 
V.  Hinde,  12  Wheat.  193,  6  L.  ed.  599  (1827),  that  "no 
court  can  adjudicate  directly  upon  a  person's  rights  with- 
out the  party  being  either  actually  or  constructively  be- 
fore the  court."  The  leading  instance  of  such  construc- 
tive presence  of  represented  persons  is  furnished  by  Rule 
37  of  the  Federal  Equity  Rules  of  1913,  which  provides 
that  "an  executor,  administrator,  guardian,  trustee  of  an 
express  trust,  a  party  with  whom  or  in  whose  name  a 
contract  has  been  made  for  the  benefit  of  another,  or  a 
party  expressly  authorized  by  statute,  may  sue  in  his 
own  name  without  joining  with  him  the  party  for  whose 

ham,  Kidg.  &  H.,  199,  200;  Calvert  cannot    be    made    parties.      In    the 

on  Parties,  Sec.  1;  Anon.,  2  Eq.  Ab.  cases  indicated  by  the  text  above, 

166,  p.  7;  Mare  v.  Malachy,  1  Myl.  the   court    does   not  need   to   disre- 

&  C.  559;  Selyard  v.  Harris,  1  Eq.  gard  relief  asked,  for  ex  hypothese 

Ab.  74;   Turner  v.  Hill,  11  Sim.  1,  no   relief  is   asked   of  the   omitted 

14;   Turner  v.  Borlase,  11  Sim.  17,  parties. 

20.      These    cases    are    essentially  93.  Story's    Eq.    PI.     (10th    ed.) 

the  same  as  cases  where  the  court  Sec.   139,  citing:  Anon.   2   Eq.  Ab. 

will  go  ahead  as  between  the  par-  166,  p.  7;   Mitf.  Eq.  PI.  by  Jeremy, 

ties   before    it,    disregarding   relief  170,  171;  see  also  Bonsai  v.  Camp, 

asked    in    respect    to    persons    who  111   Va.   595    (1911). 


PARTIES 


103 


benefit  the  action  is  brought."  ^*  These  cases  are  analo- 
gous to  cases  where  it  has  been  held  that  service  of  process 
on  the  attorney  or  agent  of  a  person  is  good  service  when 
the  person  is  abroad;  ^^  and  to  cases  holding  that  an 
injunction  binds  defendants  not  named  but  represented 
by  parties  before  the  court.^^ 

§  64.  Necessary  parties.     The  word  necessary  here  is 
used  in  its  strict  and  proper  meaning  of  indispensable,*'^ 


94.  See  also  cases  under  §  74, 
post,  p.  143;  §  69,  post,  p.  123. 

An  assignee  for  the  benefit  of 
creditors  is  treated  as  the  repre- 
sentative of  the  creditors,  in  bills 
brought  by  third  parties.  John- 
son V.  Candage,  31  Me.  28  (1849); 
Sixth  Ward  Bldg.  Assn.  v.  Willson, 
41  Md.  505   (1874). 

A  receiver  so  far  represents  the 
owner  of  the  property  under  re- 
ceivership and  the  beneficiaries  of 
the  receivership  that  neither  of 
these  need  be  joined  in  a  suit  re- 
specting the  property  under  re- 
ceivership in  which  their  interests 
are  not  adverse  to  his  interest  as 
receiver.  Iglehart  v.  Bierce,  36  111. 
133  (1864);  Mann  v.  Bruce,  5  N. 
J.  E.  413  (1846);  Doggett  v.  Flor- 
ida, etc.,  E.  Co.,  99  U.  S.  72,  25 
L.  ed.  301  (1879);  Gray  v.  Davis, 
F.  C.  5715;  1  Woods  420,  aff.  16 
Wall.  203,  21  L.  ed.  447   (1873). 

In  no  case  can  the  interest  of 
one  person  be  said  to  be  repre- 
sented by  another  person  when 
there  is  a  conflict  in  interest  be- 
tween the  two.  Beecher  v.  Foster, 
51  W.  Va.  605  (1902). 

The  person  whose  interest  is  rep- 
resented by  another  may  himself 
be  heard  on  motion  when  necessary 
to  protect  his  interests.  Anderson 
v.  Jacksonville,  etc.,  R.  Co.,  F.  C. 
358,  2  Woods  628  (C.  C.  1873). 


Creditors  of  a  debtor  who  is  in 
possession  of  his  own  property  un- 
der claim  of  title  are  represented 
by  the  debtor,  in  the  absence  of 
fraud.  Postal  Tel.  Co.  v.  Snow- 
den,  68  Md.  118  (1887). 

As  to  whether  a  remainderman 
not  in  being  is  sufficiently  repre- 
sented by  a  tenant  for  life,  see 
Hale  V.  Hale,  146  111.  227,  20  L.  R. 
A.  247  (1893);  Downer  v.  Sprech- 
er,  35  Md.  474  (1871);  Faulkner  v. 
Davis,  18  Gratt.  651,  98  Am.  Dec. 
698  (1868). 

95.  1  Barb.  Ch.  Pr.  53.  In  Shain- 
wald  V.  Davids,  69  Fed.  701  (D. 
C.  1895)  the  court  said:  "While 
resort  may  be  had  to  substituted 
service,  in  order  to  compel  parties 
to  appear  before  the  court,  through 
some  legal  and  acknowledged  rep- 
resentative, yet  this  is  done  only 
in  exceptional  cases.  The  practice 
itself  is  now  well  settled,  but  its 
use  has  been  confined,  as  a  general 
rule,  to  cases  where  the  defendant 
has  absconded  to  escape  service, 
or  has  concealed  himself,  or  can- 
not be  found,  or  has  a  legal  and 
acknowledged  general  agent  or  rep- 
resentative within  the  jurisdiction 
of  the   court." 

96.  See  Scott  v.  Donald,  165  U. 
S.  107,  41  L.  ed.  654  (1896). 

97.  See  Webster's  International 
Dictionary    (1910),    and    Standard 


104 


EQUITY  PRACTICE 


and  the  term  necessarj'  parties  means  those  persons 
having  a  material  interest  in  the  subject  matter  of  the 
suit  without  whom  as  parties  no  decree  can  be  had  in 
the  cause.^^     It  comprises  those  persons  who  must  be 


Dictionary.  The  use  of  the  word 
necessary  to  indicate  parties  who 
are  desirable  but  who  may  be  dis- 
pensed with  when  it  is  impracti- 
cable to  join  them  (i.  e.  proper 
parties  substantial)  is  clearly  inac- 
curate and  confusing. 

98.  The  cases  defining  this  class 
of  parties  are  exceedingly  numer- 
ous. See  the  following  selection  of 
illustrative   cases: 

Alabama.  Mobile,  etc.,  Co.  v. 
Gass,  129  Ala.  214  (1900). 

Delaware.  Davidson  v.  Wilson, 
a  Del.  Ch.  307  (1869). 

Florida.  Post  v.  Adams,  39  Fla. 
207   (1897). 

Illinois.  Knopf  v.  Chicago  Real 
Estate  Board,   173  111.   196    (1898). 

Maine.  Strout  v.  Lord,  103  Me. 
410  (1909). 

Maryland.  Oliver  v.  Palmer,  11 
G.  &  J.  426  (1841). 

Massachusetts.  Cassidy  v.  Shim- 
min,  122  Mass.  406  (1877). 

Michigan.  Westcott  v.  Minn. 
Min.  Co.,  23  Minn.   145   (1871). 

Mississippi.  McPike  v.  Wells, 
54  Miss.  136  (1876). 

New  Hampshire.  Busby  v.  Lit- 
tlefield,  31  N.  H.  193  (1855). 

New  Jersey.  Bradley  v.  Berns, 
51  X.  J.  E.  437   (1893). 

Pennsylvania.  Philadelphia  v. 
Eiver  Front  R.  Co.,  133  Pa.  134 
(1890). 

Rhode  Island.  Burrill  v.  Garst, 
19  R.  I.  38   (1895). 

Tennessee.  Frazier  v.  Pankey, 
1   Swan   75    (1851). 

Vermont.  McConnell  v.  Mc- 
Connell,  11  Vt.  290  (1839). 


Virginia.  Stovall  v.  Borden 
Bank,  78  Va.  188  (1883). 

West  Virginia.  White  v.  Ken- 
nedy, 23  W.  Va.  221  (1883). 

United  States.  Landram  v.  Jor- 
dan, 25  App.  D.  C.  291,  aff.  203 
U.  S.  56,  51  L.  ed.  88  (1905-6). 
Minnesota  v.  Northern  Securities 
Co.,  184  U.  S.  199,  46  L.  ed.  499 
(1902);  Barney  v.  Baltimore,  6 
Wall.  280,  18  L.  ed.  825  (1867); 
Silver  King,  etc..  Mine  Co.  v.  Sil- 
^  er  King,  etc..  Mining  Co.,  204  Fed. 
166  (C.  C.  A.  1913) ;  Rogers  v.  Pen- 
obscot, etc.,  Co.,  154  Fed.  606,  83 
C.  C.  A.  380  (1907);  Arkansas,  etc., 
R.  Co.  V.  Union,  etc.,  Co.,  154  Fed. 
304,  83  C.  C.  A.  224  (1907) ;  Dono- 
van V.  Campion,  85  Fed.  71,  29  C. 
C.  A.  30   (1898). 

Section  737  of  the  Revised  Stat- 
utes of  the  United  States  and  Fed- 
eral Equity  Rule  39  of  the  rules  of 
1913  (Rule  47  of  the  old  rules) 
do  not  authorize  the  Federal 
Courts  to  entertain  jurisdiction  of 
cases  in  which  indispensable  par- 
ties are  lacking  whether  because 
of  absence  from  the  jurisdiction  or 
otherwise.  California  v.  Southern 
Pac.  R.  Co.,  157  U.  S.  229,  39  L.  ed. 
683  (1895);  Gregory  v.  Stetson,  133 
U.  S.  579,  33  L.  ed.  792  (1889); 
Hyams  v.  Old  Dominion  Co.,  204 
Fed.  691  (D.  C.  1913);  Tobin  v. 
Walkinshaw,  F.  C.  14,068,  1  McAlI. 
26    (1855). 

Indispensability  depends  on  the 
effect  both  on  the  rights  of  those 
before  the  court  and  those  absent. 
Horn  v.  Lockhart,  17  Wall.  570, 
21   L.   ed.   657    (1873). 


PARTIES  105 

parties,  as  distinguished  from  those  who  may  or  ought 
to  be  parties.  As  in  the  case  of  proper  parties,  the  charac- 
teristics of  the  class  of  necessary  j^arties  are  chiefly 
important  when  a  person  is  omitted  as  a  party.  When  a 
person  is  made  a  party,  the  only  objection  that  can  be 
taken  is,  that  he  is  improper  because  he  has  no  interest 
whatever;  and  if  this  contention  fails,  i.t  is  not  important 
to  determine  whether  he  is  necessary  or  merely  proper. 
If  however  he  is  omitted,  having  any  interest  whatever, 
the  omission  can  only  be  excused  on  the  ground  that  if 
joined  he  would  be  but  a  "formal"  or  "substantial" 
l^arty.  Prima  facie,  as  we  have  seen,  all  persons  having 
any  interest  whatever  may  be  parties,  and  all  having  a 
material  interest  should  be  parties;  but  we  have  also  seen 
that  under  certain  circumstances  certain  of  those  who 
have  a  material  interest  may  be  omitted.  The  practical 
questions  which  usually  arise  in  regard  to  persons  sup- 
posed to  be  necessary  parties  are  therefore  these:  First, 
does  the  person  have  any  interest  whatever?  If  not,  he 
would  be  an  improper  party  if  joined.  Secondly,  if  he  has 
any  interest,  is  it  material?  If  not,  the  person  is  but  a 
formal  party  if  joined.  Thirdly,  if  he  has  a  material 
interest,  are  the  circumstances  such  that  he  can  excusably 
be  omitted? 

The  third  of  these  questions,  involving  the  matter  of 
special  circumstances  such  as  absence  from  the  jurisdic- 
tion, and  severability  or  representation  of  interest,  has 
been  discussed  under  the  head  of  Substantial  Parties, 
§  56  a7ite.  It  will  be  seen  that  the  distinction  between 
necessary  and  substantial  parties  is  largely  a  distinction 
in  the  degree  of  the  materiality  of  the  interest;  the 
interest  of  a  person  excusably  omitted  is  less  vital  than 
the  interest  of  the  strictly  necessary  party,  the  circum- 
stances permitting  his  omission  being  exceptional  in  their 
nature.  Usually,  therefore,  an  affirmative  answer  to  the 
second  question  disposes  of  the  problem:  if  the  person 
has  a  material  interest,  he  is  to  be  made  a  party.   It  is 


106  EQUITY  PRACTICE 

then  important  for  us  to  determine  what  is  a  material 
interest,  as  distinguished  from  either  a  formal  interest 
or  from  an  entire  lack  of  interest.  We  have  already,  in 
giving  examples  of  formal  parties  above,  touched  on  the 
distinction  between  formal  and  material  interests.  It 
remains  to  draw  this  distinction  more  explicitly,  and  at 
the  same  time  the  distinction  between  material  interest 
and  entire  lack  of  interest,  thus  furnishing  the  means  of 
answering  also  the  first  question  above.  Unfortunately 
this  matter  can  not  be  definitely  settled  by  any  general 
principles  that  can  be  stated.  The  problem  can  however 
be  approached,  and  an  approximate  solution  reached, 
first  by  inquiring  what  is  an  actually  improper  party, 
and  secondly,  by  examining  some  of  the  chief  heads  of 
equity  jurisdiction  and  ascertaining  what  persons  are 
there  considered  as  prima  facie  necessary. 

§  64a.  Improper  parties.  Both  the  general  rule  as  it 
is  usually  stated,  and  the  classification  of  parties  to  the 
suit  which  has  been  given  above,  are  expressed  from  the 
point  of  view  of  the  plaintiff  who  seeks  to  know  whom  he 
should  include  in  his  bill.  In  practice  this  is  the  import- 
ant question.  The  chief  concern  of  the  plaintiff  is  to 
include  enough  parties,  for  a  lack  of  those  who  should 
be  included  may  be  fatal  to  the  bill,  if  the  omitted  persons 
cannot  be  brought  in.  If  he  errs  by  including  too  many 
persons, — i.  e.  by  including  * 'improper  parties," — the 
error  is  misjoinder  or  multifariousness,  but  as  a  practical 
matter  is  easily  cured.  But  although  the  subject  of 
''improper  parties"  is  of  such  minor  practical  import- 
ance to  the  plaintiff,  it  is  of  real  importance  to  the  person 
named  as  defendant,  who  may  wish  to  be  relieved  from 
the  litigation,  and  to  secure  a  simplification  of  the  issues 
if  he  is  to  remain  as  a  party. 

Who  then  are  "improper  parties," — in  other  words, 
what  persons  should  always  be  omitted  from  the  suit? 
The  converse  of  the  classification  suggested  above  is  the 
answer:   Any  person  who  has  no  interest  either  fornial 


PARTIES 


107 


or  material,  should  not  be  made  a  party  to  the  action.'''' 
Whether  there  is  such  a  lack  of  interest  as  to  make  the 
person  an  improper  party  rests  peculiarly  in  the  dis- 
cretion of  the  court,  according  to  the  circumstances  of 
each  case.  The  general  proposition  may  be  laid  down 
that  a  joerson  lacks  such  interest  when  the  result  of  the 
decree  will  not  charge  him  with  any  liability,  or  alter  or 
rescind  his  contract,  or  affect  his  title  or  interest  in  any 
property,  or  when  his  absence  will  not  impair  the  just 
ascertainment  of  the  merits  of  the  cause,  or  subject  the 
defendants  actually  before  the  court  to  undue  incon- 
venience or  danger  of  loss,  or  greater  or  different 
liability.^    One  is  not  an  improper  party  even  though  his 


99.  Florida.  Southern,  etc.,  Co. 
V.  Lanier,  5  Fla.  110,  58  Am.  Dec. 
448   (1853),  se77ible. 

niinois.  Smith  v.  Hollenbeck,  46 
111.   252   (1867). 

Maine.  Morris  v.  Laberee,  58 
Me.  260   (1870). 

Maryland.  Wright  v.  Santa 
Clara  Assn.,  12  Md.  443  (1858). 

Michigan.  Field  v.  Ashley,  79 
Mich.  231    (1890). 

Mississippi.  Simmons  v.  Ing- 
ham, 60  Miss.  886,  897   (1893). 

New  Jersey.  Baxter  v.  Baxter, 
43  N.  J.  E.  82,  44  N.  J.  E.  298 
(1887);  Eandolph  v.  Daly,  16  N. 
J.  E.  313  (1863). 

Virginia.  Keyser  v.  Eenner,  87 
\a.  249  (1890);  Abernethy  v.  Phil- 
lips, 82  Va.  769   (1887). 

West  Virginia.  Chapman  v. 
Pittsburg,  etc.,  E.  Co.,  18  W.  Va. 
184   (1881). 

United  States.  Colonial,  etc., 
Co.  V.  Hutchinson,  etc.,  Co.,  44  Fed. 
219  (C.  C.  1840);  Woolstein  v. 
Welch,  42  Fed.  566  (C.  C.  1890). 

The  method  and  result  of  taking 
advantage   of  a   misjoinder    of   an 


improper  party  is  discussed  in  §  77, 
2)ost,  p.  155. 

1.  In  the  following  cases  persons 
were  considered  to  have  no  inter- 
est whatever,  or  too  remote  or  in- 
direct an  interest  to  make  them 
necessary  parties,  although  they 
were  not  in  all  cases  held  to  be 
actually  improper  parties. 

Alabama.  Sides  v.  Scharff,  93 
Ala.  106  (1890),  conduit  through 
whom  title  passed. 

Illinois.  Green  v.  Grant,  143  111. 
61  (1892),  contingent  remainder- 
man; Temple  v.  Scott,  143  111.  290 
(1892),  same. 

Maryland.  Postal  Tel.,  etc.,  Co. 
V.  Snowden,  68  Md.  18  (1887),  per- 
son interested  in  property  only  as 
contract  creditor  of  the  owner. 

Mississippi.  Simmons  v.  Ingram, 
60  Miss.  886   (1883),  heir. 

Virginia.  Fitzgibbon  v.  Barry, 
78  Va.  755  (1884),  contingent  re- 
mainderman. 

United  States.  Willard  v.  Tay- 
loe,  8  Wall.  557,  571,  19  L.  ed.  501 
(1870);  Cella  v.  Brown,  144  Fed. 
742,  75  C.  C.  A.  608  (1906);  Dono- 
van   V.    Campion,    85    Fed.    71,    29 


108 


EQUITY  PRACTICE 


interest  is  what  is  known  as  a  consequential  interest  ^  in 
the  determination  of  the  right  involved,  or  is  a  future, 
indirect  or  contingent  interest,  as  distinguished  from  a 
present,  direct  or  absolute  interest,  so  long  as  it  is  a  real, 
substantial  interest  or  right  which  cannot  be  disregarded 
without  injustice,  under  the  general  proposition  stated 
above.  When  a  person  is  merely  the  servant,  agent  or 
attorney  of  the  plaintiff  or  defendant,  for  instance,  has 
no  claim  of  title,  and  is  not  charged  with  fraud,^  or  when 


C.  C.  A.  30  (1898).  See  also  cases 
cited  under  the  following  notes  in 
the  present  section. 

On  the  other  hand,  the  following 
are  cases  where  a  somewhat  re- 
mote or  indirect  interest  was  never- 
theless considered  sufficient  to  pre- 
vent the  person  from  ranking  as 
an  improper  party. 

England.  Dursley  v.  Fitzhard- 
inge,  6  Ves.  Jr.  264. 

Mississippi.  Cannon,  v.  Barry, 
59  Miss.  305   (1881). 

New  Hampshire.  Batchelder  v. 
Wendell,  36  N.  H.  204  (1850). 

Vermont.  Eureka,  etc.,  Co.  v. 
Windsor,  etc.,  Co.,  47  Vt.  430 
(1874). 

West  Virginia.  Williamson  v. 
Jones,  43  W.  Va.  562  (1897);  John- 
son V.  Myles,  7  W.  Va.  311   (1874). 

United  States.  Caldwell  v.  Tag- 
gart,  4  Pet.  190,  7  L.  ed.  828  (1830); 
Hubbard  v.  Manhattan  Trust  Co., 
87  Fed.  51   (C.  C.  A.  1898). 

2.  Lord  Redesdale  (in  Mitf.  Eq. 
PI.  by  Jeremy,  170,  171)  qualifies 
the  general  rule  regarding  the 
joHider  of  parties  by  saying  that 
it  does  not  extend  to  all  persons 
who  may  be  consequentially  inter- 
ested. But  the  cases  cited  to  il- 
lustrate this  are  bills  by  a  creditor 
or  legatee  against  an  executor  or 
administrator  to  enforce  a  debt  or 


specific  legacy  where  the  other 
creditors  or  residuary  legatees, 
though  consequentially  interested 
in  the  result,  of  course  are  not  re- 
quired to  be  made  parties.  But 
this  as  Judge  Story  points  out, 
(Eq.  PI.  10th  ed.,  Sec.  141),  rests 
on  the  principle  of  representation; 
the  persons  thus  consequentially  in- 
terested are  virtually  made  parties 
through  their  representative  the 
executor  or  administrator.  With- 
out this  representation  their  pres- 
ence would  be  required  so  long  as 
their  consequential  interest  was  a 
material  one.  Indeed  every  form 
of  interest  in  the  determination  of 
a  right  or  title  is  a  consequential 
one.  It  is  merely  a  question  of 
degree,  immediate  or  remote,  and 
the  word  consequential  as  used  by 
Lord  Redesdale  is  evidently  in- 
tended to  indicate  the  more  remote. 

3.  Maine.  Brown  v.  Havens,  12 
Me.  164   (1835). 

Maryland.  White  v.  White  5 
Gill    (Md.)   359   (1847). 

Mississippi.  Hopson  v.  Harrell, 
56  Miss.  202   (1878),  semble. 

Vermont.  Hastings  v.  Belden, 
55  vt.  273  (1882). 

Virginia.  Watts  v.  Watts,  104 
Va.  269  (1905). 

United  States.  Woolstein  v. 
Welch,  42  Fed.  566  (C.  C.  1890). 


PARTIES 


109 


he  is  a  mere  witness  in  tlie  cause  ^  and  not  otherwise 
interested,  he  ought  not  to  be  made  a  party.  So  in  a  bill 
to  redeem,  when  a  person  has  not  the  equity  of  redemp- 
tion, but  the  fee  discharged  and  freed  from  any  right  of 
redemption,  and  the  bill  does  not  seek  redemption  from 
such  person  but  concedes  the  perfect  validity  of  his  title, 
he  should  not  be  made  a  party,  as  the  only  result  would 
be  to  entitle  him  to  a  bill  of  costs.^  So  auctioneers  are 
improper  parties,  unless  they  have  some  interest  such 
as  holding  deposits.^ 

So  in  general  where  a  person  has  parted  absolutely 
and  unconditionally  with  all  his  interest  legal  and  bene- 
ficial in  the  subject  matter  of  the  suit,  he  is  an  improper 
party,''^  and  if  he  be  the  sole  plaintiff  or  defendant  con- 
cerned, the  bill  cannot  be  maintained.^ 

§  65.  Bills  to  redeem  from  mortgages — Parties  plain- 
tiff. Having  now  outlined  the  general  principles  of 
the  classification  of  parties  in  equity,  we  will  next  exam- 
ine the  application  of  these  principles  to  some  of  the 
branches  of  equity  jurisdiction,  with  especial  reference 
to  the  question  of  what  persons  have  an  interest  in  the 


But  such  an  agent  or  attorney  is 
sometimes  held  to  be  a  proper 
formal  party.  Annapolis  v.  Har- 
wood,  32  Md.  471  (1870);  Sweet 
V.  Converse,  38  Mich.  1  (1891). 

4.  Schmidt  v.  Dietericht,  1  Edw. 
Ch.  (N.  Y.)  119  (1831);  Plummer 
V.  May,  1  Ves.  426;  Fenton  v. 
Hughes,  7  Ves.  Jr.  287;  McNamara 
V.  Williams,  6  Ves.  Jr.  143. 

But  officers  of  corporations  are 
sometimes  joined  as  parties  for 
purposes  of  discovery.  Fulton 
County  V.  Miss.,  etc.,  E.  Co.,  21 
111.  337,  365  (1859);  Post  v.  Toledo, 
etc.,  Co.,  144  Mass.  341  (1887); 
Buckner  v.  Abrahams,  3  Tenn.  Ch. 
346  (1877);  Baltimore,  etc.,  R.  Co. 
v.  Wheeling,  13  Gratt.  (Va.)  40,  61 


(1855);  Armstrong  v.  Savannah 
Soap  Works,  53  Fed.  124  (C.  C. 
1892);  Doyle  v.  San  Diego,  etc., 
Co.,  43  Fed.  349  (C.  C.  1890); 
compare  Boston,  etc.,  Co.  v.  Star, 
etc.,  Co.,  40  Fed.  167   (C.  C.  1889). 

5.  Linnell  v.  Lyford,  72  Me.  280 
(1881). 

6.  See  Fenton  v.  Hughes,  7  Ves. 
Jr.  289;  Heatley  v.  Newton,  19  Ch. 
D.  326;  Schmidt  v.  Dietericht,  1 
Edw.  Ch.  (N.  Y.)  119  (1831);  Eg- 
mont  V.  Smith,  6  Ch.  D.  469;  Tav- 
enner  v.  Barrett,  21  W.  Va.  656 
(1883). 

7.  See  §71,  "Assignments," 
notes  81  and  82,  post,  pp.  135,  136. 

8.  See  §  71,  note  83,  post,  p.  136. 


110  EQUITY  PRACTICE 

subject  matter  of  litigation  siicli  that  prima  facie  tliey 
are  necessary  parties, — i.  e.  what  persons  are  necessar>^ 
parties  or  substantial  parties,  as  distinguished  from  both 
formal  parties  and  improper  parties,  and  have  a  material 
interest  as  distinguished  either  from  a  formal  interest 
or  from  an  entire  lack  of  interest, — but  with  reference 
also  to  the  other  distinctions  which  have  been  stated 
above. 

The  first  of  these  subjects  to  be  considered  will  be 
mortgages,  and  bills  for  redemption  in  particular.  All 
the  owners  of  a  right  in  equity  to  redeem  the  mortgaged 
real  estate  are  to  be  classified  as  prima  facie  necessary 
parties  to  such  bills.  If  there  is  but  one  such  owner,  and 
there  have  been  no  deaths,  assignments,  or  other  circum- 
stances affecting  his  right,  the  original  mortgagor  brings 
his  bill  alone;  but  if  there  are  other  mortgagors  or  part 
owners  of  the  equity,  they  must  all  join  as  plaintiffs,  or 
must  be  joined  as  defendants  if  they  refuse  to  join  as 
plaintiff's.  One  part  owner  cannot  bring  his  bill  to  redeem 
without  joining  the  other  owner  as  a  party.^  If  the  mort- 
gagor is  dead  his  heir  or  devisee  is  the  necessary  plaintiff 

9.  MePherson    v.    Hayward,    81  Mass.  508  (1899);  McCabe  v.  Bel- 

Me.  329   (1889);  Welch  v.  Stearns,  lows,    1    All.    (Mass.)    269    (1861); 

69    Me.    192    (1879) ;    Southard    v.  compare  Conant  v.  Warren,  6  Gray 

Sutton,  68  Me.  575  (1878);  Appeal  (Mass.)    562    (1856).     Even  if  the 

of  Lance,  112  Pa.  456,  aff.  40  Leg.  husband   has    absconded.     Sanborn 

Int.  278   (1883).  v.  Sanborn,  104  Mich.  180    (1895). 

Therefore  a  bill  by  one  of  sev-  And    the    wife    must    be    made    a 

eral     heirs     is     insufficient,     even  party    where    the    husband    brings 

though  he  is  administrator.     Cham-  the    bill.      Hawes   v.    Detroit,   etc., 

berlain     v.     Lancey,     60     Me.     230  Ins.  Co.,  109  Mich.  324,  63  A.  S.  R. 

(1872).  581    (1896). 

In  a  redemption  suit  by  a  widow  But  in  Childs  v.  Champenois,  69 
or  married  woman  to  redeem  from  Miss.  603  (1891),  it  was  held  to  be 
a  mortgage  given  jointly  by  her-  no  valid  objection  that  the  co- 
self  and  husband,  or  in  which  she  owner  was  not  joined  as  plaintiff, 
joined  in  release  of  dower,  the  hus-  where  the  decree  ordered  sale  by 
band  or  his  grantee  must  be  made  the  trustee  but  not  by  a  commis- 
a    party.   Pierce    v.   Le'Monier,    172  siouer  of  the  court. 


PARTIES  111 

in  a  bill  to  redeem. i*^  If  the  bill  to  redeem  alleges  tliat 
a  part  of  the  mortgage,  principal  and  interest,  has  been 
paid  by  the  mortgagor  in  his  lifetime,  the  personal  repre- 
sentative of  the  mortgagor  as  well  as  his  heir  or  devisee, 
is  a  necessary  party  plaintiff  or  defendant  to  take  the 
account  of  what  is  due  on  the  mortgage.^^  Where  two 
estates  are  mortgaged  to  the  same  person  for  securing 
the  same  sum  of  money,  and  afterwards  by  the  death  of 
the  mortgagor  or  otherwise,  the  equity  of  redemption  of 
one  estate  becomes  vested  in  a  different  person  from  the 
other,  the  owner  of  one  cannot  redeem  his  part  separately 
but  both  must  be  joined  as  parties.^^  jf  the  mortgagor 
has  assigned  the  estate  subject  to  the  mortgage  to  one 
or  more  persons,  and  the  assignees  are  to  pay  off  the 
mortgage,  they  are  the  necessary  plaintiffs  in  a  bill  to 
redeem,^ ^  and  the  mortgagor  need  not  be  made  a  party;  ^"^ 
otherwise  however,  if  the  mortgagor  assumes  the  mort- 
gage, since  he  is  then  necessary  to  assist  in  taking  the 
account  and  to  be  bound  by  the  decree.^^  Where  a  mort- 
gagor has  conveyed  his  equity  of  redemption  to  trustees 

10.  Hunter  v.  Dennis,  112  111.  568       Clinton,  2  Jac.  &  Walk.   1,  2  Mer. 
(1884);  Chamberlain  v.  Lancey,  60       171,  4  Bligh   1. 

Me.  230   (1872);   Anding  v.  Davis,  12.  Daniell's    Ch.    Pr.    (6th    Am. 

38    Miss.    574,    77    Am.    Dee.    658  ed.),    p.    212,    citmg    Cholmondeley 

(1860),   semble;   Mclver  v.   Cherry,  v.  Clinton,  2  Jac.  &  W.  1,  2  Mer. 

S  Humph.  (Tenn.)   713  (1848),  sem-  111,  4  Bligh  1;  Palk  v.  Lord  Clin- 

hlc.  ton,  12  Ves.  48;  see  also  Bailey  v. 

So    trustees    under    the    mortga-  Myrick,   36   Me.   50    (1853);    Wing 

gor's  will,  vested  with  the  real  es-  v.  Davis,  7  Me.  31  (1830). 

tate,  are  entitled  to  redeem.     Dex-  13.  Bailey  v.  Myrick,  36  Me.  50 

ter  V.  Arnold,  F.  C.  3857,  1  Sumn.  (1853);    Brown    v.    South    Boston, 

109    (C.    C.    1831).      But    in    some  etc.,  Bank,   148  Mass.   300    (1889); 

states  personal  representatives  may  Shouler  v.  Bonander,  80  Mich.  531 

also   redeem.      Clark  v.  Seagraves,  (1890),    semble;    Brewer    v.    Hynd- 

186    Mass.    430     (1904);    Long    v.  man,  18  N.  H.  9  (1845). 

Eichards,    170    Mass.    120,   64    Am.  14.  Hilton  v.  Lathrop,  46  Me.  297 

St.  Rep.  281  (1898) ;  Cilley  v.  Huse,  (1858). 

40    N.    H.    358    (1860);    Pearcy    v.  15.  Beals    v.    Cobb,    51    Me.    348 

Tate,  91  Tenn.  478  (1892),  (1863);  Williams  v.  Smith,  49  Me. 

11.  Story's    Eq.    PI.    (10th    ed.),  564    (1861). 
Sec.     182,    citing    Cholmondeley    v. 


112  EQUITY  PRxVCTICE 

for  the  benefit  of  creditors,  the  trustees  are  necessary 
parties  plaintiff  in  a  bill  to  redeem,  and  generally  none 
of  the  creditors  entitled  under  the  trust  are  required.^" 

In  addition  to  the  mortgagor  or  the  owners  of  the 
entire  equity  of  redemption  there  are  various  persons 
having  partial  interests  under  or  with  the  mortgagor  not 
embracing  the  whole  fee,  such  as  tenants  for  life,  rever- 
sioners, remainder  men,  and  judgment  creditors  having  a 
lien  on  the  estate,  who  have  a  well  recognized  right  to 
free  the  estate,  by  redemption,  from  all  encumbrances 
in  order  to  make  their  own  claims  available.  All  such 
persons  are  necessarj^  parties  in  a  bill  to  redeem,  and  if 
they  will  not  join  as  plaintiffs  then  they  must  be  made 
parties  defendant.  A  bill  by  the  mortgagor  alone  or 
other  person  interested  cannot  be  maintained  without 
joining  them  either  as  plaintiffs  or  defendants. ^'^ 

§  66.  — Parties  defendant.  As  has  been  seen  in  the 
preceding  section,  all  owners  of  the  equity  of  redemj)- 
tion,  or  all  those  partially  interested  but  having  a 
right  to  redeem,  who  refuse  to  join  as  plaintiffs  in  a 
bill  to  redeem,  are  necessary  parties  defendant. ^^  The 
fact  that  one  of  the  other  of  the  joint  owners  of  the  equity 
of  redemption  resides  out  of  the  state  is  no  excuse  for 
not  naming  him  as  a  party  to  the  bill  and  praying  for 
process  against  liim.^^    The  mortgagee  is  of  course  the 

16.  Johnson  v.  Candage,  31  Me.  v.  LeMonier,  122  Mass.  508  (1877); 
28  (1849).  Except  when  trustees  Conant  v.  Warren,  6  Gray  (Mass.) 
are  in  collusion  with  mortgagee,  or  562  (1856);  McNeel  v.  Auldridge, 
refuse  to  sue,  or  a  few  like  circum-  25  W.  Va.  113  (1884);  Kegger  v. 
stances.                                                  '  DePue,  6  W.  Va.  288   (1873);   Up- 

So  in  general  a  trustee  may  re-  ham  v.  Brooks,  F.  C.  16,796,  2  Story 

deem  without  making  his  cestui  a  623  (C.  C.  1843). 

party.       Boyden     v.     Partridge,     2  18.  See  note  17,  ante. 

Gray  (Mass.)  190  (1859).  See  cases  19.  Southard  v.  Sutton,  68  Me.  575 

on  trustees,   §  69,  post,  p.  123.  (1878) ;  Chamberlain  v.  Lancey,  60 

17.  Crummett  v.  Littlefield,  98  Me.  230  (1872);  Sanborn  v,  San- 
Me.  317  (1903);  Eowell  v.  Jewett,  born,  104  Mich.  180  (1895).  It  ap- 
69  Me.  293  (1879);  Southard  v.  pears  from  the  above  cases  that  in 
Sutton,  68  Me.  575   (1878);  Pierce  such  case  the  bill  should  not  only 


PARTIES  113 

only  necessary  party  defendant  in  all  cases  wlien  there 
is  no  other  outstanding  interest  under  him.  If  the  mort- 
gagee is  dead,  his  heir  at  law,  or  other  person  in  whom 
the  legal  estate  is  vested  by  devise  or  otherwise,  must  be 
made  a  party,  because  he  has  the  legal  title  and  is  to  be 
bound  by  the  decree;  and  the  personal  representative  of 
the  mortgagee  also  must  be  made  a  party  because  gen- 
erally, he  is  entitled  to  the  mortgage  money  when  paid, 
as  it  is  to  be  returned  to  the  same  fund  out  of  which  it 
originally  came.^*^ 

Where  the  mortgagee  has  assigned  absolutely  and 
unconditionally  his  whole  interest  in  the  legal  estate  and 
his  whole  interest  in  the  debt  secured  by  the  mortgage, 
and  the  extent  and  validity  of  the  assignments  are  not 
questioned,  and  there  is  no  claim  upon  him  for  rents  and 
profits,  the  assignee  is  the  only  necessary  party  in  a  bill 
to  redeem,  and  the  mortgagee  need  not  be  joined.^^  But 
the  original  mortgagee  is  a  necessary  party  to  the  bill 
to  redeem  where  there  are  remaining  rights  and  liabili- 
ties in  him;  as  for  instance  where  he  has  given  a  quit- 
claim deed  without  assigning  the  debt,^^^  or  is  liable  for 
rents  and  profits,-^  or  where  the  mortgagee  contests  the 

allege   that    the   person   is    out    of  heirs  should  all  be  joined  in  a  suit 

the   jurisdiction,  but   it   should   go  to  have  the  deed  declared  a  mort- 

on  to  pray  process  against  him,  so  gage.     McNeel  v.  Auldridge,  25  W. 

that  he  may  be  made  amenable  to  Va.  113  (1884). 

the  process  of  the  court  if  he  should  21.  Beals    v.    Cobb,    51    Me.    348 

come  within  the  jurisdiction.  (1863);  Williams  v.  Smith,  49  Me. 

20.  Hilton  V.  Lathrop,  46  Me.  197  564  (1861);  Teeter  v.  Veitch,  61  A. 

(185S);    Haskins    v.    Hawkes,    108  14  (N,  J.  E.  1905). 

Mass.    379    (1871);    Dexter    v.    Ar-  21a.  Beals  v.   Cobb,   51   Me.   348 

nold,  1  Sumn.  109,  F.  C.  3857  (C.  C.  (1863). 

1831).  22.  Bryant    v.    Erskine,    55    Me. 

Heirs  or  devisees   of  a  deceased  153  (1867);  Doody  v.  Pierce,  9  All. 

mortgagee    are    sufficiently    repre-  (Mass.)   141   (1864)* 

sented  by  the  executor  or  adminis-  Where  the  mortgagee  after  entry 

trator,  where  a  bill  is  brought  to  conveys   in  fee   in  distinct  parcels 

redeem  from  a  mortgage  which  has  to  two  other  persons,  both  grantees 

not     been     foreclosed.     Strout     v.  must  be  made  parties  to  a  redemp- 

Lord,  103  Me.  410  (1909).  tion  bill.     Wing  v.  Davis,  7  Me.  31 

The   parties   to   a  deed   or   their  (1830). 
Whitehouse  E.  P.  Vol.  I — 8 


114 


EQUITY  PRACTICE 


owner's  title  to  tlie  equity,--*  or  where  the  mortgagee 
assigns  the  mortgage  and  the  notes  thereby  secured  as 
collateral  security  for  his  own  debt.-^  Where  there  are 
several  assignments  it  is  not  in  general  necessary  to  make 
any  person  but  the  last  assignee  a  party  to  the  bill,  how- 
ever many  intervening  assignments  have  been  made,  but 
if  the  mortgagor  seeks  in  his  bill  an  account  for  rents 
and  profits  or  other  sums  received  by  an  intennediate 
assignee  before  the  assignment  to  the  defendant,  the 
intermediate  assignee  is  a  necessary  party.-^ 

§  67.  Bills  to  foreclose — Plaintiffs.  In  foreclosure  bills, 
if  the  mortgagee  is  the  only  one  interested,  he  of  course 
is  the  only  necessary  party  plaintiff;  but  all  other  persons 
who  may  be  legally  or  equitably  interested  with  or  under 
the  mortgagee  are  also  necessary  parties,^^  and  if  they 


22a.  Millett  v.  Blake,  81  Me.  531 
(1889). 

So  where  the  mortgagor  contests 
the  assignee 's  title  to  the  debt. 
Burns  v.  Thayer,  115  Mass.  89 
(1874). 

23.  Brown  v.  Johnson,  53  Me. 
246  (1865);  Woolf  v.  Pemberton,  6 
Ch.   D.   19. 

24.  Bryant  v.  Erskine,  55  Me.  163 
(1867);  Lennon  v.  Porter,  2  Gray 
(Mass.)  475  (1854). 

25.  Beebe  v.  Morris,  56  Ala.  525 
(1876);  Wellington  v.  Heermans, 
110  111.  564  (1884);  Snyder  v.  Har- 
ris, 61  N.  J.  E.  480  (1901). 

Accordingly,  where  there  are 
joint  owners  of  the  mortgage,  all 
should  be  parties  plaintiff.  (See 
next  succeeding  note.) 

Where  the  same  property  is  sub- 
ject to  several  mortgages,  given  at 
the  same  time,  the  holders  of  these 
may  join  in  foreclosing.  Cochran 
V.  Goodell,  131  Mass.  464  (1881). 

Where  the  mortgage  is  given  to 
secure    several    notes,   which    come 


into  the  hands  of  different  owners, 
these  may  join  as  plaintiffs  in  fore- 
closure. Pogue  V.  Clark,  25  111. 
351  (1861);  Benton  v.  Barnet,  59 
N.  H.  249  (1879).  They  must  all 
be  parties  either  plaintiff  or  de- 
fendant. Wilson  V.  Hayward,  2 
Fla.  27  (1848);  Meyers  v.  Wright, 
33  111.  285  (1864);  Xoyes  v.  Bar- 
nett,  57  X.  H.  605  (1876);  Johnson 
V.  Brown,  31  X.  H.  405  (1855).  But 
compare  Boyer  v.  Chandler,  160  111. 
394,  32  L.  R.  A.  113  (1896);  and  in 
Maryland,  by  statute,  holders  of 
other  notes  need  not  be  parties. 
Eichardson  v.  Owings,  86  Md.  663 
(1897). 

An  oflScer  of  a  bank  who  is  the 
nominal  assignee  of  a  mortgagee 
for  the  benefit  of  the  bank,  need 
not  be  party  to  an  action  by  the 
bank  to  foreclose  the  mortgage. 
Michigan  State  Bank  v.  Trow- 
bridge, 92  Mich.  217  (1892). 

In  regard  to  trust  deeds  and 
mortgages  by  or  to  trustees  gener- 
ally, see  §  69,  post,  p.  123. 


PARTIES  115 

will  not  join  as  plaintiffs,  they  must  be  made  parties 
defendant.  Accordingly,  joint  mortgagees,  where  all  are 
living,  should  join  as  plaintiffs  in  foreclosure;  unless 
there  is  a  diversity  of  interest,  or  certain  of  the  mort- 
gagees decline  to  become  plaintiffs,  in  which  cases  these 
may  be  named  as  defendants.^''  As  there  can  be  no  re- 
demption, so  there  can  be  no  foreclosure  unless  all  the 
parties  entitled  to  the  whole  mortgage  money  are  before 
the  court.^"^ 

If  the  mortgagee  is  dead,  his  executor  or  administrator 
is  the  necessary  party  to  bring  the  bill,  for  ordinarily  the 
mortgage  money  belongs  to  the  personal  assets  and 
draws  after  it  the  mortgaged  estate  as  an  incident. ^^ 
Where  there  are  joint  mortgagees,  the  survivor  may 
bring  a  foreclosure  bill,  but  it  seems  should  join  the 
representatives  of  the  deceased  mortgagee  as  parties, 
unless  the  debt  secured  is  joint,  or  the  mortgagees  held 
as  joint  fiduciaries.^^^    Formerly  the  heir  of  the  mort- 

26.  Johnson  v.  Brown,  31  N.  H.  28.  Illinois.      Citizens'    National 

405  (1855) ;  Arkenburgh  v.  Lakeside  Bank  v.  Dayton,  116  111.  257  (1886) ; 

Residence   Assn.,   56   N.   J.   E.    102  McGooden    v.    Bartholic,    132    111. 

(1897);  DeGreiff  v.  Wilson,  30  N.  J.  App.  392  (1907). 

E,    435    (1879);    Traders'    Savings  Maine.     Plummer  v.  Doughty,  78 

Bank   v.   Freese,   26   N.   J.   E.   453  Me.  341  (1886) ;  Webster  v.  Calden, 

(1875);  Freeman  v.  Scofield,  16  N.  56  Me.  211  (1868). 

J.  E.  28  (1863);  Alabama,  etc.,  Co.  Massachusetts.      Marsh    v.    Aus- 

V.  Robinson,  56  Fed.  690,  6  C.  C.  A.  tin,  1  Allen  (Mass.)  235  (1861). 

79,  13  U.  S.  App.  359,  affirming  48  Michigan.     Albright  v.  Cobb,  30 

Fed.  12   (1893).  Mich.   355    (1874),   statutory. 

But    in    Shelden    v.    Bennett,    44  ]Mississippi.     Griffin  v.  Lovell,  42 

Mich.  634  (1880),  it  was  held  that  -^^.^^^    ^q2   (1869) 
all   the   members   of   a   partnership 
need  not  be  plaintiffs,  where  title 


New  Hampshire.     Gibson  v.  Bai- 


'           .        „  ley,  9  N.  H.  168   (1838). 

was  in  one  partner  as  trustee  tor  •"                            ^         ' 

the    others.     Where    several   bond-  New  Jersey.     Parker  v.  Fay,  61 

holders  foreclose   on  behalf  of  all,  N.  J.  E.  167   (1900);   Lambertville 

the   others    are    indispensable    par-  N.    Bank   v.   McCready    Bag,    etc., 

ties.     Mangels   v.  Brewing  Co.,  53  Co.,  9  Am.  St.  Rep.  76,  1  L.  R.  A. 

Fed.  513   (C.  C.  1892).  334  (N.  J.  E.  1888). 

27.  Palmer  v.  Carlisle,  1  Sim.   &  28a.  Maine.     Williams  v.  Hilton, 

L.    (Eng.  Ch.)   423;  Beebe  v.  Mor-  35  Me.  547  (1853).     Compare  Kins- 

ris,  56  Ala.  525  (1876).  ley  v.  Abbott,  19  Me.  430   (1841). 


116 


EQUITY  PRACTICE 


gagee  was  held  to  be  a  necessary  party  (if  not  as  plain- 
tiff then  as  defendant),  as  being  the  owner  of  the  legal 
title  as  a  trustee  for  the  personal  representative,  and  as 
alone  competent  to  reconvey  in  case  of  a  redemption;  -'•* 
but  by  the  modem  decisions  the  heir  is  not  held  to  be  a 
necessary  party,-^"  even  in  a  jurisdiction  where  the  title 
theory  of  mortgages  is  held,  a  fortiori  in  jurisdictions 
where  the  lien  theory  is  held. 

If  the  mortgagee  has  assigned  the  mortgage  absolutely 
the  assignee  or  assignees  are  the  only  indispensable  par- 
Maryland.    Lannay  v.  Wilson,  30         Maine.    Strout  v.  Strout,  103  Me. 
Md.  536  (1S69).  410   (1910). 

Massachusetts.     Blake     v.     San-  Massachusetts.    Marsh  v.  Austin, 

born,  8  Gray  (Mass.)  154  (1857). 

Michigan.  Martin  v.  McEey- 
nolds,  6  Mich.  70  (1858). 

Mississippi.  McAllister  v.  Plant, 
54  Miss.  106  (1S76). 

New  Jersey.  Mutual  Life  Ins. 
Co.  V.  Sturges,  32  X.  J.  E.  678,  re- 
versed in  33  X.  J.  E.  328  (1880); 
Traders'  Savings  Bank-  v.  Freese, 
26  N.  J.  E.  453  (1875).  Compare 
Freeman  v.  Scofield,  16  X.  J.  E. 
28   (1863). 

Where  one  of  two  executors  re- 
fuses to  join  in  the  suit,  he  may 
be  made  a  defendant  by  the  other. 
Arkenburgh  v.  Lakeside  Eesi- 
dence  Assn.,  56  X.  J.  E.  102  (1897). 
One  executor  may  sue  alone  when 
the  other  has  not  qualified.  Alex- 
ander V.  Eiee,  52  Mich.  451  (1884). 

29.  Story's  Eq.  PI.  (10th  ed.). 
Sec.  200,  citing:  Scott  v.  XicoU,  3 
Buss.  476;  Wood  v.  Williams,  4 
Mad.  186;  Clarkson  v.  Bowyer,  2 
Vern.  67;  Meeker  v.  Tanton,  2  Ch. 
Cas.  29;  Worthington  v.  Lee,  2 
Bland  (Md.)  678  (1829);  Mclver  v. 
Cherry.  27  Tenn.  713   (1848). 

29a.  Florida.  Merritt  v.  Baffin, 
24  Fla.  320  (1SS8). 

Illinois.  Citizens'  X.  Bank  v. 
Dayton,  116  111.  257  (1886). 


1  Allen   (Mass.)   235   (1861). 

Mississippi.  Griffin  v.  Lovell,  42 
Miss.  402  (1869). 

New  Jersey.  Kinna  v.  Smith,  3 
X.  J.  E.   14   (1834). 

It  has  been  held  that  the  heir  is 
not  even  a  proper  party.  Citizens' 
X.  Bank  v.  Dayton,  116  111.  257 
(1886). 

Where  however  the  heir  of  the 
mortgagee  is  in  possession,  he 
should  be  made  a  party.  Osborne 
V.  Tunis,  25  X.  J.  L.  633  (1856). 
And  heirs  to  whom  mortgage  deeds 
have  been  turned  over  by  the  ad- 
ministrator may  maintain  a  bill  as 
equitable  owners  of  the  mortgage. 
Stanley  v.  Mather,  31  Fed.  860 
(C.  C.  1887). 

In  Sargent  v.  Baldwin,  60  Vt. 
17  (1887),  a  suit  to  foreclose  was 
brought  by  the  heirs  of  a  deceased 
child  of  a  mortgagee  under  a  mort- 
gage securing  a  trust  for  the  bene- 
fit of  the  mortgagee,  his  wife  and 
children,  and  it  was  held  that  this 
was  proper,  although  the  other 
children  and  the  administrator  of 
the  mortgagee's  estate  were  nec- 
essary parties. 


PARTIES 


117 


ties.^^    It  is  otherwise  however,  if  there  is  any  remain- 
ing interest  in  the  mortgagee.^^ 

§  68.  — Defendants.  All  persons  having  an  interest 
in  the  equity  of  redemption  are  necessary  parties  to 
a    bill    to    foreclose.^^     So    if    the    equity    of    redemp- 


30.  Florida.  Matheson  v.  Thomp- 
son, 20  Fla.  790   (1884). 

Illinois.  Wilson  v.  Spring,  64 
111.  14  (1872);  Thulin  v.  Ander- 
son,  154  111.,  App.  41   (1910). 

Michigan.  Fisher  v.  Meister,  24 
Mich.   447    (1872). 

New  Jersey.  Woodruff  v.  Depue, 
14  N.  J.  E.  168  (1861);  Miller  v. 
Henderson,  10  N.  J.  E.  320  (1855). 

Pennsylvania.  Strawn  v.  Shank, 
110  Pa.  S.  259   (1885). 

Virginia.  Omohundro  v.  Henson, 
26  Gratt.  (Va.)  511   (1875). 

Minors  whose  guardian  has  as- 
signed a  mortgage  which  he  held 
for  them  are  not  necessary  parties 
to  a  bill  by  the  assignee  to  fore- 
close. Livingston  v.  Jones,  Har. 
(Mich.)   165   (1842). 

31.  So  where  the  mortgagee 
guarantees  the  debt.  Miller  v.  Mc- 
Laughlin, 132  Mich.  234  (1903), 
statutory;  Jarman  v.  Wiswall,  24 
N.  J.  E.  267  (1873).  Or  where  the 
assignment  is  for  collateral  secur- 
ity. Ackerson  v.  Lodi  Branch  E. 
Co.,  28  N.  J.  E.  542  (1877).  Or 
where  the  assignment  is  of  the  debt 
but  not  of  the  mortgage.  Langley 
V.  Andrews,  132  Ala.  147  (1901). 

32.  Florida.  Jordan  v.  Sayre, 
29  Fla.  100,  24  Fla.  1  (1892),  holder 
of  the  legal  title,  in  a  jurisdiction 
where  a  mortgage  is  but  a  lien 
thereon;  Berlack  v.  Halle,  22  Fla. 
236,  1  Am.  St.  Eep.  185  (1886), 
same. 

Illinois.  Gale  v.  Carter,  154  HI. 
App.  478   (1910),  tenant  in  posses- 


sion;   Woolner    v.    Wilson,    5    111. 
App.   439    (1879),   beneficial   owner 
of  the  equity  of  redemption. 
Michigan,      Dederick   v.    Barber, 

44  Mich.  19  (1880),  joint  maker  of 
mortgage   note. 

New  Jersey.  Gould  v.  Wheeler, 
28  N.  J.  E.  541  (1877). 

United  States.  Terrill  v.  Allison, 
21  Wall.  289,  22  L.  ed.  634  (1874); 
Detweiler  v.  Holderbaum,  42  Fed. 
337  (C.  C.  1890);  Wyman  v.  Rus- 
sell, F.  C.  18,115,  4  Biss.  307  (C.  C. 
1869);  Matcalm  v.  Smith,  F.  C. 
9,272,  6  McL.  416  (C.  C.  1855). 

See  also  cases  as  to  subsequent 
incumbrances  in  note  35,  post,  p. 
119,  and  eases  as  to  subsequent 
grantees  in- note  41,  post,  p.  121. 

The  connection  of  the  defend- 
ant with  the  mortgage  or  equity 
of  redemption  must  be  shown  by 
the  bill,  otherwise  it  will  be  dis- 
missed as  to  him.    Havens  v.  Jones, 

45  Mich.  253  (1881).  And  it  will 
also  be  dismissed  if  he  has  no  real 
connection  with  the  mortgage. 
Eamsdell  v.  Eaton,  12  Mich.  117 
(1863). 

A  mere  guarantor  of  the  debt  is 
not  a  necessary  party  to  the  fore- 
closure, and  under  some  statutes 
he  is  not  even  a  proper  party. 
Walsh  V.  Van  Horn,  22  III.  App. 
170  (1887);  Owens  v.  Potter,  115 
Mich.  556  (1898);  Earitan,  etc., 
Bank  v.  Lindsley,  58  N.  J.  E.  214 
(1899).  The  Michigan  statute  is 
but  permissive.  Steel  v.  Kent 
Circuit     Judge,      109      Mich.      647 


118 


EQUITY  PRACTICE 


tion  belongs  to  different  persons  as  devisees  or  as 
legatees,  having  charges  thereon,^^^  all  of  them  should  be 
joined  as  defendants.  The  mortgagor  it  would  seem  must 
always  be  a  necessary  party  so  long  as  he  retains  any 
interest  in  the  equity,  for  he  is  the  one  to  state  the 
account  of  what  is  due  on  the  mortgage,  and  in  the  end 
he  is  the  person  entitled  to  redeem  against  all  incum- 
brancers as  the  person  having  the  ultimate  interest.^* 
But  adverse  claimants  should  usually  not  be  made  par- 
ties.^^*    Prior  or  subsequent  incumbrancers  are  usually 


(1896).  See  Miller  v.  McLaughlin, 
132  Mich.  234  (1903);  Davis  v. 
Converse,  35  Vt.  503    (1863). 

The  wife  of  a  mortgagor  should 
be  made  a  party  where  she  joined 
in  the  mortgage,  or  where  it  is 
sought  to  bar  her  dower.  Daniels 
V.  Henderson,  5  Fla.  452  (1854); 
Mclntire  v.  Yates,  104  111.  491 
(1882);  Camp  v.  Small,  44  111.  37 
(1867);  Hurtt  v.  Crane,  36  Md.  29 
(1872);  Deniston  v.  Potts,  11  S.  & 
M.   (Miss.)   36   (1848). 

But  she  need  not  be  a  party  to 
the  foreclosure  of  a  purchase 
money  mortgage.  Lohmeyer  v. 
Durbin,  206  111.  574  (1904);  Ste- 
vens V.  Bicknell,  27  111.  444,  81  Am. 
Dec.  242  (1862).  See  also  Pitts 
V.  Aldrich,  11  All.  (Mass.)  39 
(1865),   statutory. 

But  the  personal  representative 
of  a  deceased  husband  who  joined 
in  his  wife 's  mortgage  need  not 
be  made  a  party.  Somerset  Co., 
etc.,  Assn.  v.  Cammon,  11  X.  J.  E. 
382   (1857). 

Remaindermen  are  not  necessary 
parties  to  a  bill  to  a  foreclosure 
of  a  mortgage  upon  a  life  interest. 
Wilson  V.  Russ,  17  Fla.  691  (1880); 
Williams  v.  Kirkbridge,  27  N.  J. 
E.  93  (1876).  But  a  trustee  of  a 
life   interest   is   a   necessary   party 


to  a  bill  to  foreclose  a  mortgage 
given  by  the  life  tenant.  Wilson 
V.  Russ,  17  Fla.  691  (1880). 

33.  McGown  v.  Yerks,  6  Johns. 
Ch.   (N.  Y.)  450   (1822). 

34.  Harvey  v.  Thornton,  14  111. 
217  (1852);  Kunkel  v.  Markel!,  26 
Md.  390  (1866);  Coney  v.  WinclicH, 
116  U.  S.  227,  29  L.  ed.  610,  aff. 
24  Fed.  865  (1886),  statutory; 
Ayres  v.  Wiswall,  112  U.  S.  187, 
28  L.  ed.  693  (1884). 

Even  though  the  remedy  against 
him  personally  is  barred  by  the 
statute  of  limitations.  Michigan 
Ins.  Co.  V.  Brown,  11  Mich.  265 
(1863). 

34a.  Florida.  Brown  v.  Atlanta, 
etc.,  Assn.,  46  Fla.  492   (1903). 

Illinois.  Gage  v.  Perry,  93  III. 
176  (1879);  Runner  v.  White,  60 
111.  App.  247  (1895). 

Michigan.  Pool  v.  Horton,  45 
Mich.  404  (1881).  But  see  Hor- 
ton V.  Ingersoll,  13  Mich.  409 
(1865). 

Vermont.  Kinsley  v.  Scott,  58 
Yt.  470   (1886). 

United  States.  Peters  v.  Bow- 
man, 98  U.  S.  56,  25  L.  ed.  91 
(1878);  Dial  v.  Reynolds,  08  IT.  S. 
340,  24  L.  ed.  644  (1878);  Calif., 
etc.,  Co.  V.  Cheney,  etc.,  Co.,  56 
Fed.    257    (D.    C.    1893).     But    see 


PARTIES 


119 


only  proper  parties,  whom  it  is  desirable  to  join  in  order 
to  conclude  all  parties  and  prevent  further  litigation, 
but  who  may  be  dispensed  with  if  their  joinder  is  im- 
practicable.^^   Thus  where  the  bill  of  a  junior  mortgagee 


Mendenhall  v.  Hall,  134  U.  S.  559, 
33  L.  ed.  1012  (1889);  also,  Wof- 
ford  V.  Board  of  Police,  41  Miss. 
579   (1870). 

35.  Prior  Incumbrancers. 

Alabama.  Boiling  v.  Pace,  99 
Ala.   607,  611    (1892). 

Florida.  Broward  v.  Hoeg,  15 
Fla.  370  (1875). 

Illinois.  Hibernian,  etc.,  Assn. 
V.  Law,  88  111.  App.  18  (1899); 
Foval  V.  Benton,  48  111.  App.  638 
(1892). 

Maryland.  Tome  v.  Merchants, 
etc.,  Co.,  34  Md.  12   (1871). 

Massachusetts.  Cochran  v.  Good- 
ell,  131  Mass.  464   (1881). 

Mississippi.  Waters  v.  Bossel, 
58  Miss.  602   (1881). 

Tennessee.  Hays  v.  Cornelius, 
3  Tenn.  Ch.  461  (1877). 

United  States.  Jerome  v.  Mc- 
Carter,  94  U.  S.  734,  24  L.  ed.  136 
(1876);  Boatmen's  Bank  v.  Fritz- 
len,  135  Fed.  650,  68  C.  C.  A.  288 
(1905);  First  N.  Bank  v.  Salem, 
etc.,  Mills  Co.,  31  Fed.  580,  12  Sawy. 
485,  496  (C.  C.  1887);  Wabash, 
etc.,  R.  Co.  V.  Central  T.  Co.,  22 
Fed.   138   (C.   C.  1884). 

In  some  cases  prior  incum- 
brancers have  been  held  to  be  not 
even  proper  parties.  Foval  v.  Ben- 
ton, 48  111.  App.  638  (1892);  Dick- 
erson  v.  Uhl,  71  Mich.  398  (1888); 
Hitchler  v.  Bank,  63  Miss.  403 
(1885);  Hudnit  v.  Nash,  16  N.  J, 
E.  550  (186^).  A  prior  incum- 
brancer seems,  howerer,  to  have 
been  allowed  to  enjoin  a  foreclo- 
sure decree  in  suit  brought  by  a 
junior     mortgagee,     without     any 


showing  of  any  peculiar  circum- 
stances, in  Rucks  v.  Taylor,  49  Miss. 
552  (1873). 

Prior  incumbrancers  are  neces- 
sary parties  when  the  validity  or 
amount  of  their  claim  is  disputed. 
Jerome  v.  McCarter,  94  U.  S.  734, 
24  L.  ed.  136  (1876);  Sutherland  v. 
Lake  Superior,  etc.,  Co.,  F.  C.  13,643 
(C.  C.  1874).  Or  when  a  decree  of 
foreclosure  by  sale  of  the  entire 
estate  is  sought.  Jerome  v.  Mc- 
Carter,  ubi  supra;  McClure  v. 
Adams,  76  Fed.  899  (C.  C.  1896). 
But  the  prior  incumbrancer  may 
insist  on  a  sale  subject  to  his  mort- 
gage. Gihon  V.  Belleville,  etc.,  Co., 
7  N.  J.  E.  531,  537   (1849). 

Subsequent  incumbrancers. 

Alabama.  Boiling  v.  Pace,  99 
Ala.  607  (1892);  Hambrick  v.  Rus- 
sell, 86  Ala.  199  (1888);  Forrest 
V.  Ludington,  68  Ala.  1  (1880). 
Cullom  V.  Batre,  2  Ala.  15   (1841). 

Florida.  Ritch  v.  Eichelberger, 
13  Fla.   169   (1870). 

Illinois.  Smith  v.  Wehrheim,  126 
111.  App.  328  (1906),  aff.  226  111. 
346  (1907);  Chander  v.  O'Ncil, 
62  111.  App.  418  (1895). 

Maryland.  Hughes  v.  Riggs,  84 
Md.  502  (1897),  statutory;  Chilton 
V.  Brooks,  71  Md.  445  (1889),  stat- 
utory; Leonard  v.  Groome,  47  Md. 
499   (1877).' 

Michigan.  Campbell  v.  Bane, 
119  Mich.  40   (1898). 

Mississippi.  Brown  v.  Nevitt, 
27  Miss.  801   (18.54). 

Tennessee.  Rowan  v.  Mercer,  10 
Humph.    (Tenn.)    359   (1847). 

Vermont.     Chandler  v.  Dyer,  37 


120 


EQUITY  PRACTICE 


seeks  a  foreclosure  or  sale  of  the  equity  of  redemj^tion, 
and  there  is  no  doubt  as  to  the  amounts  due  the  prior 
mortgagees,  the  latter  are  not  necessary  parties,  and  may 
be  disregarded  and  a  decree  rendered  without  them, 
especially  where  they  cannot  be  made  subject  to  the 
jurisdiction  of  the  court. ^"^  But  where  incumbrancers  are 
not  made  parties,  the  decree  does  not  bind  them.^' 

If  there  is  a  principal  mortgage  and  another  mortgage 
as  collateral  security  for  the  former,  both  mortgagors 
must  be  made  parties  to  a  bill  of  foreclosure,  since  the 
second  mortgagor  has  a  right  to  redeem. ^^  If  the  mort- 
gagor owning  the  fee  dies  before  foreclosure  is  begun, 
his  heir  or  devisee  is  an  indispensable  party  to  a  bill  to 
foreclose,^^  so  that  if  he  is  without  the  jurisdiction  no 


Vt.  345  (1864);  Billiard  v.  Leach, 
27  Vt.  491  (1854);  Weed  v.  Beebe, 
21  Vt.  495   (1849). 

United  States.  Brooks  v.  Ver- 
mont C.  R.  Co.,  F.  C.  1,964,  14 
Blatchf.  463   (C.  C.  187.8). 

In  some  of  the  cases  the  courts 
have  held  subsequent  incum- 
brancers necessary  parties.  Gould 
V.  Wheeler,  28  N.  J.  E.  87  (1877); 
Vanderveer  v.  Holcomb,  17  N.  J. 
E.  87  (1864),  aff.  17  N.  J.  E.  547 
(1866). 

A  second  mortgagee  who  has 
parted  with  his  interest  in  the 
mortgage  before  the  filing  of  the 
bill  is  obviously  an  improper  party 
to  the  foreclosure  of  the  first  mort- 
gage. Bigelow  V.  Stringfellow,  25 
Fla.  366  (1889). 

36.  Hagan  v.  Walker,  14  How. 
37,  14  L.  ed.  312  (1852). 

37.  Alabama.  Mims  v.  Cobbs, 
110  Ala.  577  (1895);  Cullom  v. 
Batre,  2  Ala.  15  (1841). 

Illinois.  Rodman  v.  Quick,  211 
111.   546    (1904). 

Maryland.  Harris  v.  Hooper,  50 
Md.  537   (1878). 


New  Hampshire.  Parsons  v. 
Little,   66  N.   H.   339    (1890). 

New  Jersey.  Atwater  v.  West, 
28  N.  J.  E.  361   (1877). 

Vermont.  Dwinell  v.  Holt,  76 
Vt.  413   (1903). 

United  States.  Finley  v.  Bank 
of  U.  S.,  11  Wheat  304,  6  L.  ed. 
480  (1826);  Young  v.  Montgomery, 
etc.,  R.  Co.,  F.  C.  18,166,  2  Woods 
606   (C.  C.  1875). 

38.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  194,  citing:  Stokes  v.  Clendon, 
3  Swanst.  150. 

39.  Florida.  Mote  v.  Morton,  46 
Fla.  478  (1903),  statutory;  com- 
pare McGregor  v.  Kellum,  50  Fla. 
581,   589    (1905),  non-statutory. 

Illinois.  Reedy  v.  Camfield,  159 
111.  254  (1896);  Ohling  v.  Lentzens, 
32  111.  23  (1863),  purchaser  from 
devisee. 

Tennessee.  Mclver  v.  Cherry,  8 
Humph.   (Tenn.)   713   (1848). 

Vermont.  Sargent  v.  Baldwin, 
60  Vt.   17   (1867). 

West  Virginia.  George  v.  Coop- 
er,  15   W.   Va.   666    (1879). 


PARTIES 


121 


further  proceedings  can  be  had.  Ordinarily  in  such  a 
case  it  is  not  necessary  to  bring  the  personal  representa- 
tive of  the  mortgagor  before  the  court,  unless  a  deficiency 
judgment  is  sought;  although  he  is  always  a  proper 
party.** 

Where  the  mortgagor  has  before  foreclosure  pro- 
ceedings are  commenced,  conveyed  his  equity  of  re- 
demption absolutely,  he  is  no  longer  a  necessary  party 
defendant.^^    If  the   conveyance   is   to   several  persons 


United  States.  Chew  v.  Hyman, 
7  Fed.  7,  10  Biss.  240  (C.  C.  1881). 

40.  Alabama.  Inge  v.  Board- 
man,  2  Ala.  331  (1841). 

Illinois.  Eoberts  v.  Tunnell,  165 
111.  631  (1897);  Eoberts  v.  Flatt, 
42  111.  App.  608  (1891).  But  see, 
contra,  Chickering  v.  Failes,  26  111. 
507  (1861),  scire  facias. 

Maryland.  Worthington  v.  Lee, 
2  Bland  (Md.)  678  (1830). 

Michigan.  Abbott  v.  Godfrey 's 
Heirs,  1  Mich.  178  (1849). 

Mississippi.  Bryne  v.  Taylor,  46 
Miss.  95   (1871). 

New  Hampshire.  Bell  v.  Wood- 
ward, 46  N.  H.  315,  335   (1865). 

New  Jersey.  Harlem,  etc.,  Assn. 
V.  Freeburn,  54  N.  J.  E.  37  (1895); 
United,  etc.,  Trust  Co.  v.  Vande- 
grift,  51  N.  J.  E.  400   (1893). 

Tennessee.  Harris  v.  Vaughan, 
2  Tenn.  Ch.  483   (1875). 

Contra:  (Statutory),  Seals  v. 
Chadwick,  2  Penn.  (Del.)  381 
(1900);  Tryon  v.  Munson,  77  Pa. 
S    250  (1875). 

41.  Illinois.  Brockway  v.  Mc- 
Clure,  243  111.  196  (1909);  Stiger 
V.  Bent,  111  111.  328  (1884). 

Michigan.  Miller  v.  Thompson, 
34  Mich.  10   (1876). 

Mississippi.  Osborne  v.  Crump, 
57  Miss.  622   (1880). 

New     Jersey.      Johnes    v.    Out- 


water,  55  N.  J.  E.  398  (1897); 
Andrews  v.  Stelle,  22  N.  J.  E.  478 
(1871);  Chester  v.  King,  2  N.  J. 
E.  405   (1841). 

Pennsylvania.  Broomell  v.  An- 
derson, 5  Sad.  142   (Pa.  1887). 

Vermont.  Miner  v.  Smith,  53 
Vt.  551  (1881);  Barton  v.  Kings- 
bury, 43  Vt.  640  (1870). 

United  States.  Grove  v.  Grove, 
93  Fed.  865   (C.  C.  1899). 

In  Miner  v.  Smith,  53  Vt.  551 
(1881),  the  mortgagor  was  held  to 
be  not  even  a  proper  party,  unless 
relief  is  sought  against  him. 

So  of  a  joint  mortgagor  who  has 
conveyed  to  his  fellow.  Townsend 
Savings  Bank  v.  Epping,  F.  C. 
14,120,  3  Woods  390  (C.  C.  1877). 

The  grantee  in  such  case  is  in 
the  position  of  a  subsequent  in- 
cumbrancer as  respects  his  right  to 
be  made  a  party.  See  note  35  to 
this  section,  ante,  p.  119.  The  court 
will  usually  require  that  he  be 
made  a  party  if  the  matter  is 
brought  to  its  attention.  Jeneson 
V.  Jeneson,  66  111.  259  (1872);  Pru- 
den  v.  Williams,  26  N.  J.  E.  210 
(1886).  If  a  decree  is  made  in  a 
case  in  which  the  subsequent 
grantee  is  not  a  party,  he  will  not 
be  bound  by  it.  Berlack  v.  Halle, 
22  Fla.  236  (1886);  Alsup  v.  Stew- 
art,  194  111.  595,   88   Am.   St.  Eep. 


122 


EQUITY  PRACTICE 


jointly  they  all  must  be  made  parties ;  ^^  likewise  where 
he  has  conveyed  his  equity  in  different  estates  mortgaged 
to  several  persons,  if  a  foreclosure  is  sought  of  all  the 
estates.  If  before  foreclosure  is  commenced,  the  mort- 
gagor has  become  bankrupt  and  his  estate  is  transferred 
under  the  bankrupt  laws,  his  trustee  only  need  be  made 
party  to  the  bill.^^    Grantees,  assignees  or  incumbrancers 


169  (1902);  Walker  v.  Walker,  179 
111.  16,  70  Am.  St.  Rep.  85  (1899); 
Thompson  v.  Smith,  96  Mich.  258 
(1893).  And  so  with  subsequent 
grantees  who  have  parted  with 
their  interest  but  have  assumed  a 
liability  toward  their  own  grantees 
in  respect  to  the  mortgage  debt. 
Biddle  v.  Pugh,  59  N.  J.  E.  480 
(1910);  Field  v.  Thistle,  58  N.  J.  E. 
339,aff.  60  N.  J.  E.  444  (1899-1900). 
And  so  of  purchasers  at  an  execu- 
tion sale  of  the  mortgagor's  inter- 
est. Hayward  v.  Kenney,  84  Mich. 
591  (1891).  But  it  would  seem 
that  grantees  of  the  mortgagor  who 
have  divested  themselves  of  all  in- 
terest in  the  premises  or  debt  are 
rot  even  proper  parties  to  the  fore- 
closure. Merritt  v.  Phenix,  48  Ala. 
87  (1872);  Biddle  v.  Pugh,  59  N.  ,1. 
E.  480  (1900);  Barton  v.  Kings- 
bury, 43  Vt.  640   (1870). 

It  is  not  necessary  that  the  per- 
son seeking  foreclosure  should  join 
an  unrecorded  grantee  of  whose 
rights  he  has  no  notice.  Connely 
V.  Rue,  148  111.  207  (1893);  Oak- 
ford  V.  Robinson,  48  111.  App.  270 
(1892);  Dinsmore  v.  Westcott,  25 
N.  J.  E.  302^(1874).  But  posses- 
sion under  an  unrecorded  deed  is 
notice.  Thompson  v.  Smith,  96 
Mich.   258    (1893). 

Members  of  a  governmental 
board  which  has  under  the  powers 
of  eminent  domain  brought  con- 
demnation  proceedings   subsequent 


to  the  mortgage,  are  necessary  de- 
fendants to  a  foreclosure  suit. 
Colehour  v.  State  Savings  Instn., 
90  111.  152  (1878);  and  so  of  a  mu- 
nicipality which  has  bought  a 
waterworks  subject  to  the  mort- 
gage. Centerville  v.  Fidelity 
Trust,  etc.,  Co.,  188  Fed.  332,  35 
C.  C.  A.  348  (1902).  But  holders 
of  tax  titles  need  not  be  joined. 
Brown  v.  Atlanta  Big.,  etc.,  Assn., 
46  Fla.  492  (1903);  Hayward  v. 
Kinney,  84  Mich.  591  (1891);  com- 
pare Farmers',  etc..  Bank  v.  Bron- 
son,  14  Mich.  361  (1866),  semble 
contra. 
.  42.  Curtis  v.  Gooding,  99  Ind.  45 
(1884). 

43.  Harris  v.  Cornell,  80  111.  54, 
65  (1875);  Cole  v.  Duncan,  58  111. 
176  (1871);  Stafford  v.  Adair,  57 
Vt.  63  (1885);  Barron  v.  New- 
berry, F.  C.  1056,  1  Biss.  149  (C.  C. 
1857).  But  see  Chiekering  v.  FaUes, 
26   111.  507    (1861),  scire  facias. 

The  bankrupt  mortgagor  must  be 
a  party  where  the  mortgaged 
premises  include  a  homestead  ex- 
empt under  state  laws.  Dendel  v. 
Sutton,  20  Fed.  787  (C.  C.  1884). 

Where  foreclosure  proceedings 
antedate  the  mortgagor's  bank- 
ruptcy, his  trustee  in  bankruptcy 
is  a  proper  but  not  a  necessary 
party.  Mount  v.  Manhattan  Co., 
43  K  J.  E.  25  (1887);  Oliver  v. 
Cunningham,  6  Fed.  60  (C.  C. 
1880). 


PARTIES 


123 


pendente  lite  are,  however,  not  necessary  parties,  al- 
though bound  by  the  decree;  for  they  take  their  rights 
with  constructive  notice. ^^^ 

If  the  mortgaged  property  is  held  in  trust,  the  trustees 
as  well  as  the  cestuis  or  beneficiaries  are  necessary  par- 
ties to  the  bill  to  foreclose.^^ 

§  69.  Trusts.  The  general  rule  in  suits  concerning  trust 
property  brought  either  by  or  against  the  trustees  is, 
that  the  cestuis  are  also  necessary  parties;  and  in  suits 
by  or  against  the  cestuis  the  trustees  are  likewise  neces- 
sary parties.^^     The  trustees  are  necessary  parties  be- 


43a.  Illinois.  Norris  v.  He,  152 
111,  190,  43  Am.  St.  Rep.  233 
(1894);  Pratt  v.  Pratt,  96  111.  184 
(1880);  Chickering  v.  Fullerton,  90 
111.  520   (1878). 

Maryland.  Stockett  v.  Good- 
man, 47  Md.  54  (1877). 

Mississippi.  Osborne  v.  Crump, 
57  Miss.  622    (1880). 

New  Jersey.  McPherson  v. 
Housel,  13  N.  J.  E.  299   (1861). 

West  Virginia.  Linn  v.  Patton, 
10  W.  Va.  201,  203   (1877). 

United  States.  Stout  v.  Lye,  103 
U.  S.  66,  26  L.  ed.  428  (1881). 

In  Chickering  v.  Fullerton,  90 
111.  520  (1878),  and  Stockett  v. 
Goodman,  47  Md.  54  (1877),  it 
was  held  that  such  a  person  is  not 
even  a  proper  party. 

44.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  197,  citing  Gifford  v.  Hort,  1 
Sch.  &  Lefr.  386;  Steele  v.  Maun- 
der, 1  Coll.  535.  See  next  section 
post,  and   especially   note  46. 

45.  Alabama.  Kimball  v.  Greig, 
47  Ala.  230  (1872);  Stone  v.  Hale, 
17  Ala.  557  (1850). 

Delaware.  Martin  v.  Purnell,  4 
Del.  Ch.  249  (1871). 

Florida.  Nelson  v.  Haisley,  39 
Fla.  145  (1897),  semhle. 


Illinois.  Butler  v.  Butler,  164 
111.   171    (1896). 

Maine.  Wakefield  v.  Marr,  65 
Me.  341  (1876);  Beals  v.  Cobb,  51 
Me.  348   (1863). 

Maryland.  Numsen  v.  Lyon,  87 
Md.  31  (1898),  partition;  Stewart 
V.  Firemen's  Ins.  Co.,  53  Md.  564 
(1880),  semhle. 

Massachusetts.  Sears  v.  Harvey, 
120  Mass.  524  (1876);  Richards  v. 
Richards,  9  Gray  (Mass.)  313 
(1857). 

Michigan.  Glass  v.  Glass,  50 
Mich.  289   (1883). 

Mississippi.  Rembert  v.  Key,  58 
Miss.  533  (1880);  Prewett  v.  Land, 
36  Miss.  495    (1858). 

New  Jersey.  Schuler  v.  South- 
ern, etc.,  Co.,  77  N,  J.  E.  61  (1910) ; 
Mackey  v.  Mackey,  71  N.  J.  E.  686 
(1906),  partition;  Brokaw  v.  Bro- 
kaw's  Executors,  41  N.  J.  E.  215, 
(1886);  Van  Doren  v.  Robinson,  16 
N.  J.  E.  256   (1863). 

Pennsylvania.  Lehigh  Coal  Co.  's 
Appeal,  88  Pa.  499   (1879). 

Rhode  Island.  Warren  v.  Provi- 
dence Tool  Co.,  21  R.  I.  488  (1899). 

Tennessee.  Hughes  v.  Brown, 
88  Tenn.  578  (1889);  Cronin  v. 
Watkins,   1   Tenn.   Ch.   119    (1873). 


124 


EQUITY  PRACTICE 


cause  they  have  the  legal  interest  and  the  cestuis  because 
they  have  the  equitable  and  ultimate  interest  to  be 
affected  by  the  decree.  So  if  a  bill  for  the  redemption 
or  foreclosure  of  a  mortgage  is  brought  against  a  trus- 
tee, the  cestuis  que  trustent  are  necessary  parties;  ^«  or 
if  a  bill  is  brought  by  a  trustee  to  foreclose  a  mortgage 
held  by  him  for  the  benefit  of  a  cestui  que  trust,  both 
the  trustee  and  the  cestui  should  usually  be  made  par- 
ties."*^ On  the  other  hand  in  a  redemption  bill  brought 
by  a  trustee,  the  cestui  que  trust  is  not  a  necessary  party 
unless  his  interests  are  adverse  to  his  trustees.'*^  If  a 
bill  is  brought  by  a  cestui  que  trust  for  specific  perform- 
ance of  a  covenant  made  to  a  trustee  for  the  benefit  of  a 
cestui,  the  trustee  must  be  made  a  party;  or  if  the  trustee 
is  plaintiff  or  defendant  in  a  bill  for  the  specific  perform- 


Vermont.  Davis  v.  Hemingway, 
29  Vt.  438  (1837). 

Virginia.  Simon  v.  Ellison,  90 
Va.  157   (1893). 

West  Virginia.  Beckwith  v. 
Laing,  66  W.  Va.  246  (1909);  Pyle 
V.  Henderson,  55  W.  Va.  122  (1904). 

United  States.  Carey  v.  Brown, 
92  U.  S.  171,  23  L.  ed.  469  (1875); 
Woodward  v.  M>cConaghy,  106  Fed. 
758,  45  C.  C.  A.  602  (1901);  Eyan 
V.  Seaboard,  etc.,  R.  Co.,  89  Fed. 
397   (C.   C.   1898). 

But  by  Federal  Equity  Rule  (of 
1913),  No.  37,  an  executor,  admin- 
istrator, guardian  or  the  trustee  of 
an  express  trust,  or  a  party  with 
whom  or  in  whose  name  a  contract 
has  been  made  for  the  benefit  of 
another,  may  sue  in  his  own  name 
without  joining  his  beneficiary. 

And  so  of  trustees  in  Rhode  Is- 
land by  Equity  Rule  16. 

46.  Redemption  Bills.  Glass  v. 
Glass,  50  Mich.  289  (1883);  Piatt 
V.  Oliver,  2  McL.  307,  F.  C.  11,115 
(C.  C.  1840),  semble. 


Foreclosure  Bills.  Clark  v.  Rey- 
burn,  8  Wall.  318,  19  L.  ed.  354 
(1869);  Piatt  v.  Oliver,  2  McL.  307, 
F.  C.  11,115  (C.  C.  1840). 

The  beneficiaries  need  not  be 
joined  when  the  trust  is  secret. 
Young  V.  Whitnej',  18  Fla.  54 
(1881);  Broward  v.  Hoeg,  15  Fla. 
370  (1875).  And  so  by  general 
principles  elsewhere  dismissed, 
when  the  beneficiaries  are  numer- 
ous or  unknown. 

47.  Ring  v.  New  Auditorium, 
etc.,  Co.,  77  N.  J.  E.  422 
(1910.);  Butler  v.  Farry,  68  N.  J. 
E.  760  (1905);  Applegate  v.  Tyson, 
40  N.  J.  E.  305,  rev.  39  N. 
J.  E.  365  (1885);  Allen  v.  Roll,  25 
N.  J.  E.  163  (1874);  Davis  v.  Hem- 
mingway,  29  Vt.  438  (1857).  Con- 
tra, Sill  V.  Ketchum,  Harr.  (Mich.) 
423   (1842). 

48.  Boyden  v.  Partridge,  2  Gray 
(Mass.)  190  (1854);  Woodson  v. 
Perkins,  5  Gratt.  (Va.)  345  (1849). 


PARTIES 


125 


ance  of  a  contract  tlie  cestuis  que  tnistent  should  usually 
be  made  parties.^'' 

Where  there  are  several  trustees,  in  a  suit  in  re- 
spect to  the  trust  property,  all  must  be  parties,  for 
all  have  a  common  interest,  and  otherwise  different 
suits  might  be  brought  by  or  against  each;^°  for  similar 
reasons,  if  there  are  several  cestuis  que  trustent,  all 
should  be  made  parties  in  a  bill  concerning  the  common 
interest.^  ^  If  any  of  the  trustees  are  dead,  the  survivor 
or  survivors  of  them  should  be  made  parties  to  a  bill 
concerning  the  trust.^^  If  all  the  trustees  of  real  estate 
are  dead  the  heir  of  the  trustee  last  surviving  is  a 
necessary  party.^^     But  the  administrator  must  also  be 


49.  Internal  Improvement  Fund 
V.  Gleason,  15  Fla.  384  (1875); 
Gaytes  v.  Franklin  Sav.  Bank,  85 
111.  256  (1877);  Bridgman  v.  Mc- 
Intire,  150  Mich.  78  (1907);  Ta- 
venner  v.  Barrett,  21  W.  Va.  656 
(1883);  Fleming  v.  Holt,  12  W.  Va. 
143  (1877);  Piatt  v.  Oliver,  2  McL. 
307,  F.  C.  11,115  (C.  C.  1840). 

But  where  testamentary  trus- 
tees are  defendants  to  a  bill  for 
specific  performance  of  their  testa- 
tor's contract,  the  cestuis  need  not 
be  made  parties.  Newark  Sav. 
Inst.  V.  Jones,  35  N.  J.  E.  406 
(1882).  And  see  also  Washburn 
&  Co.  V.  Chicago,  etc.,  Co.,  109  111. 
71  (1884);  Gibbs  v.  Blackwell,  37 
111.  191  (1865);  Van  Doren  v.  Rob- 
inson, 16  N.  J.  E.  256  (1863). 

50.  Hutchinson  v.  Ayres,  117  111. 
558  (1886);  Sayre  v.  Sayre,  17  N. 
J.  E.  349  (1866);  Hedrick  v.  Ruble, 
78  Tenn.  15  (1882);  Caylor  v. 
Cooper,  165  Fed.  757   (C.  C.  1908). 

If  one  of  the  trustees  will  not 
join  as  plaintiff  in  a  suit  by  his  co- 
trustees, he  may  be  made  a  defend- 
ant. Caylor  v.  Cooper,  165  Fed. 
757  (C.  C.  1908). 


51.  Speakman  v.  Tatem,  45  N.  J. 
E.  388  (1889);  Greene  v.  Sisson,  2 
Curt.  171,  F.  C.  5,768  (C.  C.  1854). 

52.  Richeson  v.  Ryan,  15  111.  13 
(1853);  Inhabitants  of  Anson,  Peti- 
tioners, 85  Me.  79  (1891);  Nichols 
V.  Campbell,  10  Gratt.  (Va.)  560 
(1854).  All  of  these  are  cases  of 
actions  at  law  but  the  same  prin- 
ciple holds  in  equity. 

If  there  is  no  trustee  in  esse, 
the  cestui  may  sometimes  bring  a 
proceeding  concerning  the  trust 
without  asking  for  the  appointment 
of  a  new  trustee.  Wheelwright  v. 
St.  Louis,  etc.,  Co.,  56  Fed.  164  (C. 
C. 1893). 

53.  Lawrence  v.  Lawrence,  181 
111.  248  (1899);  Unitarian  Soc.  v. 
Woodbury,  14  Me.  281  (1837); 
Hawkins  v.  Chapman,  36  Md.  83 
(1872);  Shaffer  v.  Fetty,  30  W.  Va. 
248    (1887). 

The  heirs,  however,  are  not  nec- 
essary parties  where  the  land  in 
question  has  been  duly  sold  by  the 
administrator  to  pay  the  debts  of 
the  deceased.  Bates  v.  Hurd,  65 
Me.  180   (1876). 


126  EQUITY  PRACTICE 

joined  where  a  constructive  trustee  holding  the  real 
estate  in  fee  dies  insolvent,  so  that  the  administrator  has 
a  contingent  interest  in  the  real  estate  of  which  he  died 
seized,  to  be  sold  and  administered  for  the  benefit  of  his 
creditors.^^  And  if  the  trust  is  of  a  term  of  years  or 
other  chattel  interest,  the  administrator  or  executor  is 
the  only  necessary  party  to  represent  the  trus.tee  's  title.^^ 
If  the  trustee  assigns  his  trust  absolutely  the  assignee 
should  be  a  party  in  his  stead,  and  the  trustee  need  not 
be  made  a  party  unless  the  assignment  is  a  breach  of 
trust.^^ 

There  are,  however,  certain  exceptions  to  the  general 
rule  above  stated,  that  trustees  and  cestuis  are  both 
necessary  parties,  in  suits  by  or  against  either.  The 
most  important  of  these  is  that  the  cestuis  are  not  neces- 
sary parties  to  a  suit  brought  by  the  trustee  to  recover  the 
trust  estate  or  a  part  thereof,  or  to  recover  for  breaches  of 
trust  committed  by  former  trustees.""  So  also  where  each 

54.  Unitarian  Soc.  v.  Woodbury,  Uhlein,  36  Atl.  956  (N.  J.  Ch.  1897). 
14  Me.  281  (1837).  Where   the    trustee   fraudulently 

But  in  general  the  administrator  conveys    the    trust    property,    the 

of  a  deceased  trustee  is  not  a  nee-  grantees  and  not  the  heirs  of  the 

essary   party   to   a   bill   to   declare  trustee   are   the   proper  parties   de- 

and  enforce  the  trust   against  the  fendant  to  a  bill  to  set  the  convey- 

heirs.     Hallesy  v.  Jackson,  66  111.  ance  aside,  as  the  grantees  and  not 

139  (1872);  Shaffer  v.  Fetty,  30  W.  the  heirs  succeed  to  the  trust.   Dra- 

Va.  248   (1887).  per   v.    McFarland,    1    Gilm.    (111.) 

55.  Richardson  v.  Richardson,  83  310   (1844). 

Mich.  653  (1890).  57.  Alabama.     Walker  v.  Miller, 

Where  there   has  been  a  breach  11   Ala.  1,067   (1847). 

of   trust   by   the    deceased   trustee  Illinois.     Regan  v.  West,  115  111. 

jointly  with  his  co-trustees,  the  per-  603    (1886). 

sonal  representative,  if  within  tho  Maryland.       Van     Bokkelen     v. 

jurisdiction,  should  be  joined  as  a  Tinges,  58  Md.  53  (1882);  Stewart 

party.     Hazard  v.  Durant,  19  Fed.  v.  Firemen's  Ins.  Co.,  53  Md.  564, 

471  (C.  C.  1884).  574   (1880). 

56.  Story's  Eq.  PI.  (10th  ed.),  Massachusetts.  Ashton  v.  Presi- 
Sec.  211.  ciling:  Cooper's  Eq.  PI.  dent,  etc.,  of  Atlantic  Bank,  3 
34;  Bromley  v.  Holland,  7  Ves.  3,  Allen  (Mass.)  217  (1861);  Boyden 
11,  5  Ves.  610;  Burt  v.  Dennet,  2  v.  Partridge,  2  Gray  (Mass.)  190 
Bro.   Ch.   225.     See   also    Carter   v.  (1854). 


PARTIES 


127 


cestui  is  entitled  to  an  aliquot  part,  sucli  as  a  quarter  or  a 
half  of  an  ascertained  and  definite  trust  fund,  he  may  sue 
for  his  own  portion  without  making  the  other  cestuis 
parties,  for  there  is  no  community  of  property,  and  their 
interests  are  distinct  and  separate.^^  Again,  where  the 
beneficiaries  are  very  numerous,  or  many  of  them  are 
unknown  or  reside  abroad,  or  it  is  difficult  or  impracticable 
to  ascertain  in  the  first  instance  who  are  all  the  persons 
included,  their  virtual  representation  by  the  trustee  is  held 
sufficient  without  requiring  the  joinder  of  all  the  ces- 
tuis.^^     This  is  frequently  the  case  where  trust  deeds 


Michigan.  Snook  v.  Pearsall,  95 
Mich.  534  (1893);  Adams  v.  Brad- 
ley, 12  Mich.  346  (1864). 

Mississippi.  Ferguson  v.  Ap- 
plenhite,  18  Miss.  301  (1848). 

New  Jersey.  Stevens  v.  Bosch, 
54  N.  J.  Eq.  59   (1895). 

Pennsylvania.  Clemens  v.  Heck- 
sher,  185  Pa.  476   (1898). 

United  States.  Carey  v.  Brown, 
92  U.  S.  171,  23  L.  ed.  469  (1875); 
Hickox  V.  Elliott,  22  Fed.  13,  10 
Sawy.  415  (C.  C.  1884). 

It  has  been  said  that  in  such 
case  the  cestuis  are  not  even 
proper  parties.  Be  E.  T.  Kenney 
Co.,  136  Fed.  451  (C.  C.  1905). 

The  cestui  has  been  held  not  to 
be  a  necessary  party  when  no 
rights  between  himself  and  the 
trustee  are  affected.  Smith  v.  Port- 
land, 30  Fed.  734  (C.  C.  1887).  Or 
when  his  interests  are  sufficiently 
protected  in  fact  by  other  persons 
who  are  parties.  Sweet  v.  Parker, 
22  N.  J.  E.  453  (1871);  Beekwith 
V.  Laing,  QQ  W.  Va.  246  (1909). 
Or  when  the  suit  is  merely  to  es- 
tablish the  priority  of  the  trust. 
Tompkins  v.  Tompkins,  123  Fed. 
207  (C.  C.  1903).    Or  when  the  suit 


is  by  a  third  person,  adversely  to 
the  trust.  Vetterlein  v.  Barnes, 
124  U.  S.  169,  31  L.  ed.  400  (1888); 
Kerrison  v.  Stewart,  93  U.  S.  155, 
23  L.  ed.  843   (1876). 

58.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  207a,  citing :  Morley  v.  Eeynold- 
son,  2  Hare  570;  Smith  v.  Snow,  3 
Mad.  10;  Hutchinson  v.  Townsend, 
2  Keen  675;  Hares  v.  Stringer,  15 
Beav.  206.  See  also  Millsap  v. 
Stanley,  50  Ala.  319  (1873);  Huck- 
abee  v.  Swope,  20  Ala.  491  (1852) ; 
Pickering  v.  De  Rochemont,  45  N. 
H.   67    (1863). 

59.  Walker  v.  Miller,  11  Ala. 
1,067  (1847);  Chicago  Land,  etc., 
Co.  V.  Peck,  112  111.  408  (1885); 
Farmers'  Loan  &  Trust  Co.  v.  Lake 
St.,  etc.,  R.  Co.,  68  111.  App.  666 
(1896),  aff.  173  111.  439  (1898); 
Shaw  v.  Norfolk  County  R.  Co.,  5 
Gray  (Mass.)  162  (1855);  Steven- 
son V.  Austin,  3  Met.  (Mass.)  474 
(1842);  Camden  Safe  Deposit,  etc., 
Co.  V.  Dialogue,  75  N.  J.  E.  540 
(1909);  Beals  v.  R.  R.,  133  U.  S. 
190,  33  L.  ed.  608  (1890).  And  see 
the  cases  in  notes  to  §  59,  unte,  p. 
92,  and  in  note  47  to  this  section, 
ante,  p.  124. 


128 


EQUITY  PRACTICE 


secure  bond  issues.^"*  Again,  if  there  are  several  trus- 
tees who  are  all  implicated  in  a  common  breach  of  trust, 
the  cestui  may  bring  a  bill  for  relief  against  all  or  either 
of  them  at  his  option.^'^  So  also  where  the  trust  has  been 
executed  or  the  trustee  is  no  longer  interested,  the  trustee 
is  not  a  necessary  party .'^'^^    The  frame  of  the  bill  may 


59a.  Illinois.  Chicago,  etc.,  Land 
Co.  V.  Peck,  112  111.  408   (1885). 

Maine.  Mason  v.  York,  etc.,  R. 
Co.,  52  Me.  82   (1861). 

Massachusetts.  First,  etc..  In- 
surance Co.  V.  Salisbury,  130  Mass. 
303  (1881);  Shaw  v.  Norfolk,  etc., 
E.  Co.,  5  Gray  (Mass.)   162  (1855). 

New  Jersey.  Camden,  etc.,  Co. 
V.  Dialogue,  75  N.  J.  E.  540  (1909) ; 
Lambertville  N.  Bank  v.  McCrea- 
dy,  etc.,  Co.,  15  A.  388,  1  L.  R.  A. 
334  (N.  J.  E.  1888).     ■ 

Pennsylvania.  McElrath  v.  Pitts- 
burg, etc.,  Co.,  68  Pa.  37  (1871). 

Vermont.  Be  Chickering,  56  Vt. 
82   (1883). 

United  States.  Richter  v.  Je- 
rome, 123  U.  S.  233,  31  L.  ed.  132 
(1887). 

The  beneficiaries  or  bondholders 
may  bring  the  bill  when  the  trus- 
tee refuses,  or  has  a  hostile  inter- 
est, naming  the  trustee  as  a  de- 
fendant. 

New  Hampshire.  Hale  v.  Nashua, 
etc.,  R.  Co.,  60  X.  H.  333  (1880). 

New  Jersey.  Shultze  v.  Van 
Doren,  64  N.  J.  E.  465  (1903); 
Johnes  v.  Outwater,  55  N.  J.  E. 
398  (1897);  McFadden  v.  Mays, 
etc.,  Co.,  49  N.  J.  E.  176  (1891). 

Pennsylvania.  Commonwealth  v. 
Susquehanna,  etc.,  R.  Co.,  122  Pa. 
St.  306,  319  (1888). 

United  States.  Omaha  Hotel  Co. 
V.  Wade,  97  U.  S.  13,  24  L.  ed.  917 
(1877);  First  N.  Bank  v.  Radford 
Trust  Co.,  80  Fed.  569,  20  C.  C.  A. 


1  (1897);  American  Tube,  etc.,  Co. 
V.  Kentucky,  etc.,  Co.,  51  Fed.  826 
(C.  C.  1892). 

It  is  usually  held  that  the  bene- 
ficiary or  bondholder  can  only 
bring  the  proceeding  when  the 
trustee  refuses  or  is  disqualified. 
General  Electric  Co.  v.  LaGrande, 
etc.,  Co.,  87  Fed.  590,  31  C.  C.  A. 
118  (1898).  But  there  are  cases 
which  do  not  make  this  distinc- 
tion. See  Town  v.  Alexander,  85 
111.  App.  512  (1899),  aflf.  185  111. 
254  (1900);  Dorn  v.  Colt,  180  111. 
397,  afiP.  79  111.  App.  656  (1899). 

The  plaintiff  beneficiary  should 
state  that  he  brings  the  bill  in 
behalf  of  himself  and  others  who 
may  later  join  as  plaintiffs.  Berry 
V.  Bacon,  28  Miss.  318  (1854);  Mc- 
Fadden V.  Mays  Landing,  etc.,  R. 
Co.,  49  N.  J.  E.  176  (1891);  New 
Orleans,  etc.,  R.  Co.  v.  Parker,  143 
U.  S.  42,  36  L.  ed.  66   (1892). 

60.  Felbrath  v.  Peoria,  etc., 
Assn.,  66  111.  App.  77  (1895); 
Heath  v.  Erie  R.  Co.,  8  Blatchf. 
347,  F.  C.  6,306  (C.  C.  1871);  Haz- 
ard V.  Durant,  19  Fed.  471  (C.  C. 
1884) ;  compare  Caylor  v.  Cooper, 
165  Fed.  757   (C.  c'  1908). 

A  fortiori,  when  the  wrong- 
doing is  by  one  trustee  alone,  he 
may  be  sued  alone.  Caylor  v. 
Cooper,  165  Fed.  757  (C.  C.  1908); 
Ba}^  State  Gas  Co.  v.  Rogers,  147 
Fed.  557   (C.  C.  1906). 

60a.  Briscoe  v.  Power,  85  111.  420 
(1877);    Harding   v.   Olson,   76   111. 


PARTIES 


129 


furnish  ground  for  dispensing  with  parties.  Thus  where 
the  bill  seeks  only  an  account  of  so  much  of  the  trust 
fund  as  has  come  into  the  hands  of  a  particular  trustee, 
he  is  the  only  party  necessary ;  ^^  so  if  the  bill  contains 
allegations  showing  that  persons  who  would  otherwise 
be  necessary  parties,  have  no  title  or  interest  in  the  suit, 
and  make  no  claim  to  any.^- 

§  70.  Partners  and  joint  interests.  If  a  bill  in  equity  is 
brought  by  or  against  one  of  several  partners  in  a  matter 
concerning  partnership  transactions,  as  a  general  rule  all 
the  members  of  the  co-partnership  are  necessary  par- 
ties.^^  A  dormant  partner  is  however  but  a  proper  party, 
not   a  necessary  party,   either  at   law   or  in   equity.^^^ 


App.  475,  aff.  177  111.  298  (1898); 
Teeter  v.  Veitch,  61  Atl.  14  (N. 
J.  E. -1905);  King  v.  Donnelly,  5 
Paige  (N.  Y.)  46  (1835);  Cable  v. 
Cable,  146  Pa.  451  (1892);  Ed- 
mund's Appeal,  68  Pa.  24  (1871); 
Williams  v.  Vantrese,  39  S.  W.  741 
(Tenn.  1897). 

61.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  214,  citing  Selyard  v.  Harris, 
1  Eq.  Abr.  74,  Munch  v.  Cocker- 
ell,  8  Sim.  219. 

62.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  214a,  citing  Mare  v.  Malachy, 
1  Myl.  &  C.  577,  Smith  v.  Brooks- 
bank,  7  Sim.  18. 

So  where  it  is  alleged,  in  order 
to  prevent  the  necessity  of  making 
an  executor  a  party,  that  he  has 
accounted  for  all  the  receipts.  Mc- 
Bride  v.  Mclntyre,  91  Mich.  406 
(1892). 

63.  Illinois.  Sandusky  v.  Sid- 
well,  173  111.  493,  73  111.  App.  491 
(1898) ;  Lombard  v.  Johnson,  76  111. 
599   (1875). 

Maine.  Fuller  v.  Benjamin,  23 
Me.  255   (1843). 

Massachusetts.  Fowle  v.  Torrey, 
131  Mass.  289  (1881). 

Whitehouse  E.  P.  Vol.  I — 9 


New  Jersey.  DeGreiff  v.  Wil- 
son, 30  N.  J.  E.  435  (1879). 

Vermont.  Noyes  v.  Sawyer,  3 
Vt.   160    (1830). 

United  States.  Ambler  v.  Cho- 
teau,  F.  C.  272  (1876),  aff.  107 
U.  S.  586,  27  L.  ed.  322  (1882); 
Edgell  V.  Felder,  84  Fed.  69,  28 
C.  C.  A.  382  (1897);  Parsons  v. 
Howard,  F.  C.  10,777  (C.  C.  1873). 

But  in  Sheldon  v.  Bennett,  44 
Mich.  634  (1880),  it  was  held  that 
a  partner  who  held  a  mortgage  as 
trustee  for  the  firm  might  foreclose 
without  joining  his  co-partners. 

If  a  partner  refuses  to  become 
party  plaintiff  he  should  be  made 
defendant.  Edgell  v.  Felder,  84 
Fed.  69,  28  C.  C.  A.  382  (C.  C. 
1897). 

A  partner  joining  a  firm  after  a 
mortgage  is  executed  to  the  firm, 
is  a  proper  plaintiff  in  foreclosure. 
Minchrod  v.  Ullman,  163  111.  25 
(1896). 

63a.  Alabama.  Hitchcock  v.  U. 
S.  Bank,  7  Ala.  388   (1845). 

Illinois.  Goggin  v.  O  'Donnell, 
62  111.  66  (1871);  Page  v.  Brant, 
18  111.  37  (1856). 


130 


EQUITY  PRACTICE 


Death  or  bankruptcy  of  a  partner  dissolves  the  firm; 
thereafter  the  survivor  may,  until  the  firm  affairs  are 
settled,  sue  and  be  sued  in  respect  to  the  property  of  the 
firm,  without  the  joining  of  the  personal  representative 
or  trustee  in  bankruptcy  of  the  former  partner;*'^  but 
these  must  be  joined  with  the  survivors  as  parties 
defendant  to  a  suit  by  a  creditor  to  realize  upon  the 
individual  liability  of  the  partners  for  a  claim  ai>-ainst 
the  firm ;  ^^  and  both  they  and  the  surviving  partners 


Maryland.  Hopkins  v.  Kent,  17 
Md.  72   (1861). 

Massachusetts.  Wood  v.  O 'Kel- 
ley,  8  Cush.  406  (1851). 

Michigan.  Smith  v.  Ayrault,  71 
Mich.  475,  1  L.  E.  A.  311  (1848). 

Pennsylvania.  Eogers  v.  Kich- 
Jine,  36  Pa.  293  (1860). 

Vermont.  AVart  v.  Dodge,  34  Vt. 
181  (1861);  Morton  v.  Webb,  7  Vt. 
123   (1835). 

64.  Keirle  v.  Shreiver,  11  G.  & 
J.  (Md.)  405  (1841),  suit  at  law; 
Harwood  v.  Jones,  10  G.  &  J.  (Md.) 
404  (1840);  Robertshaw  v.  Han- 
way,  52  Miss.  713  (1876);  Robin- 
son V.  Thompson,  S.  &  M.  Ch. 
(^Miss.)  713  (1843);  Rusling  v. 
Brodhead,  55  N.  J.  E.  200  (1896); 
Bischoffsheim  v.  Balzer,  20  Fed. 
890   (C.  C.  1884). 

Nor  need  the  heirs  of  a  deceased 
partner  be  made  defendants  to  a 
bill  to  set  aside  a  conveyance  of 
realty  to  the  firm,  for  the  property 
in  question,  as  to  the  firm  and  its 
creditors  is  personal  property  of 
the  firm.  Folsom  v.  Detrick  Fer- 
tilizer, etc.,  Co.,  85  Md.  52  (1897). 
Nor  were  the  heirs  held  necessary 
parties  to  a  bill  to  sell  machinery 
belonging  to  the  firm.  Saunders  v. 
Stallings,  52  Tenn.  65  (1871). 

But  on  revival  of  a  suit  for 
specific  performance  brought  origi- 


nally by  one  partner  for  the  bene- 
fit of  his  firm,  it  was  held  that  his 
executors  and  devisees  as  well  as 
the  surviving  partner  should  be 
parties  plaintiff.  Watson  v.  White, 
152  111.  364  (1894). 

And  in  Wilson  v.  Seligmau,  F.  C. 
No.  17,S32a  (C.  C.  1880),  a  demur- 
rer was  overruled  to  a  bill  of  re- 
vivor against  the  representative 
of  a  deceased  partner,  where  a  suit 
in  equity  had  been  brought  against 
the  firm.  Contra,  Hammond  v.  St. 
John,  4  Yerg.   (Tenn.)   107   (1833). 

When  the  survivor  has  settled 
the  affairs  of  the  firm,  the  adminis- 
trator and  heirs  of  a  deceased  part- 
ner should  thereafter  be  joined  in 
a  bill  to  rescind  a  sale  of  land  by 
the  firm.  Davis  v.  Ross,  50  S.  W. 
eSoO  (Tenn.  Ch.  1898).  And  the  ad- 
ministrator and  heirs  are  neces- 
sary parties,  of  course,  where  their 
interest  may  be  adverse  to  that  of 
the  survivor,  as  for  instance  where 
he  sues  to  administer  lands  bouglit 
with  partnership  funds.  Whitney 
V.  Cotton,  53  Miss.  689   (1876). 

65.  Fillyan  v.  Laverty,  3  Fla.  72 
(1850);  Robertshaw  v.  Hanway,  52 
Miss.  713  (1876);  Saunders  v.  Wil- 
der, 2  Head  (Tenn.)  577  (1859); 
Jackson  v.  King,  8  Leigh  (Va.) 
689  (1837);  Nelson  v.  Hill,  5  How. 
127,   12  L.   ed.  81    (1846);   Vose  v. 


PARTIES 


131 


should  be  parties  to  a  suit  for  contribution;  •^'^  or  to  a  bill 
for  an  accounting  of  the  affairs  of  the  firm.^'^  Especially 
must  all  the  partners  be  joined  where  the  bill  prays  for 
a  dissolution  of  the  partnership,  or  for  a  final  accounting 
of  its  affairs  subsequent  to  a  dissolution.*'^ 

On  the  other  hand,  in  a  bill  by  one  member  of  a  firm 
seeking  to  recover  a  sum  from  each  of  his  co-partners 
on  the  ground  that  he  had  advanced  more  than  his  pro- 
portion, where  no  dissolution  was  asked  for,  but  the  busi- 
ness affairs  of  the  firm  had  all  been  settled  and  adjusted, 
it  was  held  that  those  partners  who  were  absent  from 
the  jurisdiction  might  be  dispensed  with,  since  the  plain- 
tiff sought  no  decree  against  the  absent  partners;  and 
the  decree  could  not  bind  them  or  be  enforced  against 
them  but  as  to  them  left  all  questions  open,  though  their 
joinder  would  be  required  if  they  were  within  the  juris- 


Philbrook,  F.  C.  17,010,  3  Story  335 
(C.  C.  1844). 

66.  Compton  v.  Thorn,  90  Va. 
653   (1894). 

Even  though  there  are  partners 
surviving  who  have  no  individual 
estate,  they  must  be  parties  to  a 
bill  of  contribution  against  the  es- 
tate of  a  deceased  partner.  Bruns 
V.  Heise,  101  Md.  163  (1905). 

67.  Carpenter  v.  St.  Clair  Judge, 
122  Mich.  323  (1899);  Harrison  v. 
Righter,  11  N.  J.  E.  389  (1857); 
Pettit  V.  Baird,  30  Leg.  Int.  208 
(Pa.  1873) ;  Bartle  v.  Coleman,  F.  . 
C.  No.  1,072,  3  Cranch  C.  C.  283, 
aflf.  as  Bartle  v.  Nutt,  4  Pet.  184, 
7  L.  ed.  826  (1828);  Brew  v.  Coch- 
ran, 141  Fed.  459  (C.  C.  1905). 

So  of  a  bill  by  a  surviving  part- 
ner to  administer  lands  bought  by 
the  deceased  partner  with  partner- 
ship funds.  Whitney  v.  Cotton,  53 
Miss.  689  (1871). 

68.  Illinois.     Gerard     v.     Bates, 


124  111.  150,  7  Am.  St.  Eep.  350 
(1888);  Stevenson  v.  Mathers,  67 
111.   123   (1873). 

Maryland.  McKaig  v.  Hebb,  42 
Md.  227  (1875). 

New  Hampshire.  Raymond  v. 
Came,  45  N.  H.  201   (1864),  semble. 

Pennsylvania.  Heck  v.  Col- 
lins, 231  Pa.  357   (1911). 

United  States.  Fourth  Nat. 
Bank  v.  New  Orleans,  etc.,  R.  Co., 
11  Wall.  624,  20  L.  ed.  82  (1870); 
Parsons  v.  Howard,  F.  C.  10,777,  2 
Woods  1  (C.  C.  1873);  Gray  v. 
Larrimore,  F.  C.  5,721,  4  Sawy.  638 
(C.  C.  1865). 

Even  though  the  interest  of  a 
partner  in  property  of  the  firm 
has  been  levied  upon  by  a  cred- 
itor, the  partner  must  be  party  to 
a  bill  for  dissolution.  Gerard  v. 
Bates,  124  111.  150,  7  Am.  St.  Rep. 
350  (1888).  And  even  though  the 
partner  has  transferred  his  inter- 
est. Raiguel's  Appeal,  80  Pa.  234 
(1876).     But  see  note  70,  post. 


132 


EQUITY  PRACTICE 


diction.^^  A  former  partner  who  lias  sold  out  his  interest 
and  adjusted  all  his  accounts  with  the  partnership  need 
not  be  joined  in  a  bill  by  heirs  of  one  partner  against 
jjersonal  representatives  of  a  second,  seeking  an  account 
of  partnership  dealings.'*' 


69.  Lawrence  v.  Rokes,  53  Me. 
110  (1865). 

And  so  in  general,  any  partners, 
and  particularly  non-resident  part- 
ners, have  been  said  to  be  dis- 
pensable parties  when  substantial 
justice  can  be  given  without  bring- 
ing them  in.  Palmer  v.  Stevens, 
100  Mass.  461  (1868).  Thus  where 
one  partner  who  has  received  less 
than  his  share  asks  an  accounting 
from  another  who  has  received  an 
excess,  the  partners  out  of  the 
jurisdiction  having  received  their 
lull  share.  Towle  v.  Pierce,  12 
Met.  (Mass.)  329,  46  Am.  Dec.  679 
(1847).  And  where  an  outsider 
asks  an  accounting  for  profits  due 
him  under  a  special  contract  with 
the  firm,  the  non-resident  partner 
having  died,  and  the  profits  in  ques- 
tion having  been  received  by  the 
survivors.  Eusling  v.  Brodhead, 
55  X.  J.  E.  200  (1896).  So  where 
the  sole  object  of  the  bill  was  to 
apply  to  a  judgment  against  the 
firm  the  individual  property  of  a 
partner,  which  had  been  fraudu- 
lently conveyed  away,  no  relief  be- 
ing asked  against  the  omitted  part- 
ner. Eandolph  v.  Daly,  16  X.  J.  E. 
:^,13  (1863).  So  a  plaintiff  may 
bring  a  bill  in  equity  to  abate  a 
nuisance,  though  he  has  partners 
in  the  business  affected  by  the 
nuisance.  Mississippi,  etc.,  E.  Co. 
v.  Ward,  2  Black  (U.  S.)  485,  17 
L.   ed.  311    (1862). 

In  American,  etc..  Machine  Co. 
v.  Crosman,  57  Fed.  1029  (C.  C. 
1893),  it  was  held  that  in  a  bill  to 


enjoin  the  infringement  of  a  pat- 
ent, only  one  partner  need  be  made 
party  defendant,  unless  an  account- 
ing be  sought  against  the  firm.  And 
in  general,  it  has  been  held  that 
where  there  is  a  joint  fraud,  the 
absence  from  the  jurisdiction  of 
one  of  the  guilty  persons  does  not 
prevent  proceeding  against  the  oth- 
ers. Palmer  v.  Stevens,  100  Mass. 
461,  466  (1868);  Heath  v.  Erie  R. 
Co.,  8  Blatchf.  347,  F.  C.  6306  (C.  C. 
1871).  But  see,  contra,  Bell  v. 
Donahue,  17  Fed.  710  (C.  C.  1883) ; 
W^all  V.  Thomas,  41  Fed.  620  (C.  C. 
1890),  bill  for  an  injunction 
against  four  of  nine  trustees. 

And  see,  also,  Carson  v.  Eobert- 
son,  Chase  475,  F.  C.  2,466  (C.  C. 
1869),  reversed  19  Wall.  94,  22  L. 
ed.  178  (1874);  Vose  v,  Philbrook, 
3  Story  335,  F.  C.  17,010  (C.  C. 
1844). 

70.  Warren  v.  Warren,  56  Me. 
360  (1868).  See  Eaiguel's  Appeal, 
80  Pa.  234  (1876);  Kilbourn  v. 
Sunderland,  130  U.  S.  505,  32  L.  ed. 
1,005  (1889). 

But  where  the  affairs  of  the 
partnership  towards  outside  per- 
sons remain  in  any  way  unset- 
tled, all  the  partners  are  necessary 
parties  to  a  bill  fpr  an  accounting. 
Fourth  Xat.  Bank  v.  Xew  Orleans, 
etc.,  R.  Co.,  11  Wall.  624,  20  L.  ed. 
82  (1871).  All  the  partners  are 
necessary  parties  to  a  bill  to  set 
aside  firm  transactions.  Bell  v. 
Donahue,  17  Fed.  710  (C.  C.  1883). 
Or  to  recover  money  due  the  firm. 
Edgell  V.  Felder,  84  Fed.  69  (C.  C. 


PARTIES  133 

Persons  having  a  joint  interest  in  personal  estate, 
such  as  the  part  owners  of  a  ship,  must  all  be  made 
parties  either  as  plaintiffs  or  defendants.  Thus  in  a  bill 
seeking  an  adjustment  of  accounts  between  part  owners 
of  a  vessel,  the  bill  was  held  demurrable  for  want  of 
necessary  parties  where  two  part  owners,  who  were  non- 
residents, had  not  been  summoned  and  did  not  appear, 
and  there  was  no  allegation  that  they  had  received  their 
share  of  the  earnings  of  the  vessel,  since  without  them 
no  decree  could  be  made  which  would  be  certain  to  do 
justice  among  the  remaining  part  owners  or  constitute 
a  final  adjustment  of  their  affairs/^ 

It  may  be  stated  as  a  general  rule  that  all  joint  owners 
or  contractors,  or  others  having  a  community  of  interest 
in  duties,  claims  or  liabilities,  are  necessary  parties."^  So 
one  joint  tenant  or  tenant  in  common  cannot  sue  or  be 
sued  without  joining  the  others  in  matters  affecting  their 
common  interests. '^^  So  all  persons  who  are  affected 
by  a  common  charge  or  burden  must  ordinarily  be 
made  parties,  not  only  for  the  purpose   of  ascertain- 

1897).     In  a  suit  against  a  surviv-  Bank    v.   Miller,    47   111.    App.    310 

ing    partner    to    subject    firm    as-  (1893). 

sets,  however,  the  administrator  of  71.  Mudget  v.  Gager,  52  Me.  541 

the  deceased  partner  is  not  a  neces-  (1864). 

sary   party.      Eobertshaw   v.    Han-  If    it    appeared,    however,    that 

way,  52  Miss.  713  (1876).  their  interests  would  not  be  preju- 

The  purchaser  or  transferee  of  a  diced  by  the  decree  and  also  that 

partner's    interest    is    a    necessary  they  were  not  necessary  to  the  just 

party  to  a  bill  for  an  accounting.  ascertainment  of  the  merits  of  the 

Eosenstiel    v.    Gray,    112    111.    282  case  before   the   court   they  might 

(1884);  White  V.  White,  4  Md.  Ch.  be  dispensed  with.     See  Milburn  v. 

418    (1849);    Glynn  v.  Phetteplace,  Guyther,  8  Gill.   (Md.)   92,  50  Am. 

26    Mich.    383     (1873);    Pearce    v.  Dec.  681   (1849). 

Sutherland,  164  Fed.  609,  90  C.  C.  72.  Story's    Eq.    PI.    (10th    ed.), 

A.    519    (1908);    Hoxie   v.    Carr,    1  Sec.  159;  Cooper's  Eq.  PI.  35;  Fal- 

Sumn.  173,  F.  C.  6,802  (C.  C.  1832).  lows    v.    Williamson,    11    Ves.    306, 

If  a  partner  dissolves  his  connec-  309;  Davis  v.  Pfeiflfer,  213  111.  249 

tion  with  the  firm  after  the  part-  (1904). 

ners    have    brought    an    action,    he  73.  Weston     v.     Keighley,    Rep. 

may  still  be  required  to  answer  a  Temp.  Finch  82;   Brookes  v.  Burt, 

cross  bill  in  the  cause.     Robinson  1  Beav.  106. 


134  EQUITY  PRACTICE 

ing  and  contesting  tlieir  right  or  title,  but  also  for 
the  purpose  of  a  contribution  among  themselves  in  case 
it  is  established.  Thus  where  there  is  a  judgment  lien 
on  several  parcels  of  land,  if  the  owner  of  one  seeks  to 
exonerate  his  parcel  ^nd  obtain  contribution,  he  must 
make  all  the  owners  of  the  other  parcels  parties/'* 

Likewise  in  cases  of  joint  bonds  or  obligations,  all  the 
parties,  obligors  and  obligees,  are  necessary  parties  to 
the  suit.'^  In  regard  to  the  obligors  this  is  largely  a 
rule  of  convenience,  in  order  to  save  those  who  are  sever- 
ally charged  the  trouble  of  a  new  suit  for  contribution 
against  those  who  are  not  charged.  The  rule  is,  there- 
fore, subject  to  certain  exceptions,  standing  however  on 
special  grounds.  Thus  in  the  case  of  a  joint  and  several 
bond,  if  one  of  the  obligors,  either  a  principal  or  a  surety, 
is  insolvent,  he  need  not  be  made  a  party ."^^  So  if  the 
suit  is  against  the  principal  alone  without  the  sureties, 
the  latter  being  insolvent  or  not  having  paid  anything, 
and  if  the  bill  seeks  nothing  except  against  the  principal, 
the  bill  is  maintainable,  although  the  sureties  might  have 
properly  been  made  parties  if  the  plaintiff  had  so  de- 
sired."''^ 

In  all  these  cases  it  will  be  noticed  there  is  a  com- 
munity of  interest  in  all  the  parties  which  may  be 
affected  by  the  decree;  but  if  the  nature  of  the  suit 
involves  no  such  common  right  or  interest,  tlien  all  per- 
sons  claiming   in   priority   of  estate  are  not   necessary 

74.  Avery    v.    Patten,    7    Johns.  more  of  the  parties  thereto.     Code 
Ch.   (N.  Y.)   211   (182;?).  ]907,  Sec.  3089. 

75.  Story's    Eq.    PI.    (10th    ed.),  76.  Story's    Eq.    PI.    (10th    ed.), 
See.   169.  Sec.  169,  citing:  Cockburn  v.  Thomp- 

In  Alabama,  by  statute,  all  obli-  son,   16  Ves.   326;   Madox  v.  Jack- 

gations  are  joint  and  several.   Code  son,   3   Atk.   406;   Young  v.  Lyons, 

1907,    Sec.    2503.      This   applies   to  8  Gill.  (Md.)  162  (1849);  Montague 

partnership   obligations.     Haralson  v.     Turpin,     8     Gratt.     (Va.)     4.53 

V.  Campbell,  63  Ala.  278   (1879).  (1852);     Angerstein     v.     Clark,     2 

.    By    statute,     also,     in     chancery  Dick.  738,  3  Swanst.  147n. 
suits  a  person  holding  a  joint  de-  77.  Haywood    v.    Ovey,    6    Mad. 

mand  may  proceed  against  one  or  113,  and  see  cases  in  note  76,  onte. 


PARTIES 


135 


parties.  So  a  tenant  for  life  may  maintain  a  suit  to  set 
aside  a  conveyance  of  his  life  estate  obtained  from  him 
through  fraud,  without  making  the  other  persons 
interested  in  the  estate  parties,  for  they  cannot  be  affected 
by  the  conveyance."^  So  in  the  case  of  a  joint  and 
several  contract,  the  bill  may  be  brought  against  one  or 
more  of  the  persons  severally  liable. '^^ 

§  71.  AssigTiments.^o  The  general  rule  is  that  where 
an  assignment  or  transfer  is  absolute  and  unconditional, 
leaving  no  equitable  interest  whatever  in  the  assignor, 
and  the  extent  and  validity  of  the  assignment  is  not 
doubted  or  denied,  and  there  is  no  remaining  liability  in 
the  assignor  to  be  affected  by  the  decree,  the  bill  should 
be  brought  by  or  against  the  assignee,  and  it  is  not  neces- 
sary^ to  make  the  assignor  a  party.^^     At  most  he  is  a 


78.  Henley  v.  Stone,  3  Beav.  355. 

79.  Federal  Equity  Rules  of 
1913,  No.  42. 

80.  See  notes  14,  15  and  16  to 
§65,  ante,  p.  Ill;  note  21  to  §66, 
ante,  p.  113;  notes  30  and  31  to 
§  67,  <ante,  p.  117,  and  notes  41,  42 
and  43  to  §  68,  ante,  pp.  121,  122,  in 
regard  to  parties  in  redemption  and 
foreclosure  bills  when  mortgagor  or 
mortgagee  has  assigned  his  interest. 

81.  Alabama.  Jones  v.  Smith, 
92  Ala.  455  (1890);  Reese  v.  Brom- 
berg,  88  Ala.  619  (1889). 

Delaware.  Dodd  's  Admr.  v.  Wil- 
son, 4  Del.  Ch.  399  (1872). 

Florida.  Robinson  v.  Springfield 
Co.,  21  Fla.  203  (1885). 

Illinois.  Roby  v.  South  Park 
Commrs.,  252  111.  575  (1912);  Glea- 
fon,  etc.,  Mfg.  Co.  v.  Hoffman,  168 
HI.  25  (1897);  Marsh  v.  Green,  79 
111.  385   (1875). 

Maine.  Moore  v.  Veazie,  32  Me. 
343  (1850);  Miller  v.  Whittier,  32 
Me.  203  (1850);  Haskell  v.  Hilton, 
30  Me.  419  (1849). 


Maryland.  Grand  United  Order, 
etc.,  V.  Merklin,  65  Md.  579,  583 
(1886). 

Massachusetts.  Andrews  v.  Tut- 
tle-Smith  Co.,  191  Mass.  461 
(1906);  Currier  v.  Howard,  14 
Gray  511    (1860). 

Michigan.  Morey  v.  Forsyth, 
Walk.  Ch.  465   (1844). 

Mississippi.  Everett  v.  Winn,  1 
S.  &  M.  Ch.   (Miss.)   67   (1843). 

New  Jersey.  Teeters  v.  Veitch, 
61  Atl.  14  (X.  J.  Eq.  1905);  King 
V,  Berry,  3  N.  J.  Eq.  44  (1834). 

Rhode  Island.  Paine  v.  Baker, 
15  R.  I.  100  (1885);  Sayles  v.  Tib- 
bitts,  5  R.  I.  79  (1857). 

Tennessee.  Wilson  v.  Davidson 
County,  3  Tenn.  Ch.  536  (1877). 

Vermont.  Lockwood  v.  White, 
65  Vt.  466  (1893);  Eureka  Marble 
Co.  V.  Windsor  Mfg.  Co.,  47  Vt. 
430,  447  (1874);  Day  v.  Cummings, 
19  Vt.  496  (1847). 

Virginia.  Tatum  v.  Ballard,  94 
Va.  370  (1897);  Omohundro  v.  Hen- 
son,    26    Gratt.    (Va.)    511    (1875); 


136 


EQUITY  PRACTICE 


formal  party  whom  it  would  be  proper  to  join  as  the 
legal  owner,  if  desired;  and  he  has  even  been  held  to  be 
an  improper  party.^-  If  the  bill  is  brought  in  the  name 
of  the  assignor  alone  it  is  not  maintainable.^^  On  the 
other  hand  where  the  assignment  is  not  absolute  and 
unconditional,  or  the  extent  or  validity  of  the  assignment 
is  disputed  or  denied,  or  there  are  remaining  rights  or 
liabilities  of  the  assignor  which  may  be  affected  by  the 
decree,  or  he  is  charged  with  fraud  or  collusion,  or  a 
discovery  is  sought  from  him,  then  he  is  not  only  a  proper 
but  a  necessary  party.^'* 


James  River,  etc.,  Co.  v.  Little- 
john,  18  Gratt.  (Va.)  53  (1867). 

West  Virginia.  Smith  v.  Corne- 
lius, 41  W.  Va.  59,  30  L.  R.  A.  747 
(1895);  Chapman  v.  Pittsburgh, 
etc.,  R.  Co.,  18  W.  Va.  184  (1881); 
Vance  v.  Evans,  11  W.  Va.  342 
(1877). 

United  States.  Dancel  v.  Good- 
year, etc.,  Co.,  137  Fed.'  157  (C.  C. 
1905);  O'Shaugnessy  v.  Humes, 
129  Fed.  953  (C.  C.  1904);  New 
Mexico  Land  Co.  v.  Elkins,  20  Fed. 
545  (C.  C.  1884);  Trecothick  v. 
Austin,  F.  C.  14,164,  4  Mason  16 
(C.   C.   1825). 

82.  Abernathy  v.  Phillips,  82  Va. 
769  (1887).  Compare  §  64a,  ante, 
p.  106.  And  see  Wilson  v.  David- 
son County,  3  Tenn.  Ch.  536 
(1877). 

83.  Florida.  Sammis  v.  Wight- 
man,  31  Fla.  45  (1893). 

Illinois.  Smith  v.  Brittenham, 
109  111.  540  (1884). 

Maine.  Crooker  v.  Rogers,  58 
Me.  339  (1870);  Haskell  v.  Hilton, 
30  Me.  419   (1849). 

Virginia.  Hurt  v.  Miller,  95  Va. 
32  (1897);  Campbell  v.  Shipman, 
87  Va.  655  (1891);  Keyser  v.  Ren- 
ner,  87  Va.  249   (1891). 


West  Virginia.  First  Nat.  Bank 
V.  Cook,  55  W.  Va.  220   (1904). 

84.  Alabama.  Prout  v.  Hoge,  57 
Ala.  28   (1876). 

Florida.  Robinson  v.  Springfield 
Co.,  21  Fla.  203  (1885);  Betton  v. 
Williams,  4  Fla.  11   (1851). 

Maine.  Brown  v.  Johnson,  53 
Me.   246   (1865). 

Massachusetts.  Hunneman  v. 
Savings  Instn.,  205  Mass.  441 
(1910);  Montague  v.  Lobdell,  IJ 
Cush.  (Mass.)  Ill  (1853);  Haskell 
V.  Codman,  8  Met.  (Mass.)  536 
(1844). 

New  Jersey.  Miller  v.  Hender- 
son, 10  N.  J.  E.  320  (1855). 

Vermont.  Eureka  Marble  Co.  v. 
Windsor  Mfg.  Co.,  47  Vt.  430 
(1874). 

Virginia.  Lynchburg  Iron  Co.  v. 
Tayloe,  79  Va.  671  (1884). 

West  Virginia.  Jameson  v. 
Myle's  Exors.,  7  W.  Va.  311  (1874). 

United  States.  Dulles  v.  H.  Crip- 
pen  Mfg.  Co.,  156  Fed.  706  (C  C. 
1907);  Hubbard. V.  Manhattan  Trust 
Co.,  87  Fed.  51,  30  C.  C.  A.  520 
(1898);  Cook  v.  Bidwell,  8  Fed. 
452  (C.  C.  1881). 


PARTIES 


137 


Where  an  assignment  is  made  by  a  debtor  for  the 
benefit  of  creditors,  if  any  creditor  brings  suit  against 
the  assignee  to  enforce  the  trust,  or  for  an  accounting,  or 
to  recover  his  share  of  the  property,  all  the  other  credit- 
ors must  be  made  parties,  unless  it  is  brought  in  the  form 
of  a  general  creditors'  bill  in  behalf  of  the  plaintiff  and 
all  others  who  may  wish  to  come  in  and  obtain  the  benefit 
of  the  decree.^^  But  in  a  bill  by  a  third  party  against 
the  assignee,  where  the  latter  represents  the  interests  of 
all  the  creditors  in  common,  the  creditors  are  not  neces- 
sary parties.^'*  Where  the  debtor  notwithstanding  the 
assignment,  has  an  interest  in  the  property,  as  for 
instance  where  the  assignment  provides  that  any  surplus 
remaining  after  payment  of  the  creditors  should  be  paid 
over  to  the  debtor,  the  latter  must  be  made  a  party  to  a 
bill  to  enforce  the  assignment;  but  otherwise,  according 
to  the  general  rule,  being  without  any  iDractical  interest, 


85.  Haughton  v.  Davis,  23  Me. 
28  (1843);  Bouve  v.  Cottle,  143 
Mass.  810  (1887);  Bryant  v.  Eus- 
sell,  23  Pick.  (Mass.)  508  (1839); 
Martin  v.  Eainwater,  56  Fed.  7,  5 
C.  C.  A.  398  (C.  C.  1893);  Greene 
V.  Sisson,  2  Curt.  171,  F.  C.  5,768 
(C.  C.  1854).  Contra  (Statutory). 
Wilhelm  v.  Byles,  60  Mich.  561 
(1886). 

But  in  Dorr  v.  Gibboney,  F.  C. 
4,006,  3  Hughes  382  (C.  C.  1878), 
it  was  held  that  a  creditor  whose 
claim  was  fixed  and  determined  in 
amount  by  the  deed  might  bring  a 
bill  against  the  trustee  for  a  breach 
of  the  trust  without  joining  the 
other  creditors  as  parties.  See  also 
Thornton  v.  Tison,  95  Ala.  589 
(1891);  Bolman  v.  Overall,  80  Ala. 
451  (1886);  Brown  v.  Bates,  10 
Ala.  432    (1846). 

A  bill  by  a  creditor  to  set  aside 


an  assignment  may  be  brought 
either  for  himself  alone  or  in  be- 
half of  others  in  the  same  situation 
with  him,  or  by  all  the  creditors 
together.  Eiley  v.  Carter,  76  Md. 
581  (1893);  Bernard  v.  Barney, 
etc.,  Co.,  147  Mass.  356  (1888); 
White  V.  Davis,  48  N.  J.  E.  22 
(1891).  In  such  case,  creditors  who 
are  not  joined  as  plaintiffs  need 
not  be  made  defendants,  the  as- 
signor and  assignee  being  the  only 
necessary  defendants.  Therasson 
v.  Hickok,  37  Vt.  454  (1865);  Ker- 
rison  v.  Stewart,  93  U.  S.  155,  23 
L.  ed.  843   (1876). 

86.  Johnson  v.  Candage,  31  Me. 
28  (1849);  Stevenson  v.  Austin,  3 
Met.  (Mass.)  474  (1842). 

All  the  assignees  must  be  par- 
ties to  a  bill  charging  misconduct. 
Andrews  v.  Tuttle-Smith  Co.,  191 
Mass.   461    (1906). 


138 


EQUITY  PRACTICE 


lie  would  not  be  necessary.^'^  The  assignees  tliem- 
selves  may  file  a  bill  to  enforce  the  trust  without  making 
the  creditors  parties,  since  in  such  a  case  they  are  the 
proper  representatives  of  all  of  them.^^  In  cases  of 
bankruptcy,  the  trustees  must  be  made  parties  in  all  suits 
where  any  interest  in  the  property  is  or  may  be  vested  in 
them,^*^  and  where  it  is  sought  to  establish  a  claim  against 
the  estate  of  a  bankrupt,  neither  he  nor  his  creditors  are 
necessary  or  proper  parties. ^'^ 


87.  Andrews  v.  Ford,  106  Ala. 
173  (1894);  Haughton  v.  Davis,  23 
Me.  28  (1843);  Hobart  v.  Andrews, 
21  Pick.  (Mass.)  526,  532  (1839). 

The  assignor  is  not  a  necessary 
party  to  a  bill  filed  against  the  as- 
signee by  one  claiming  a  lien  upon 
the  property  and  asking  no  relief 
against  the  assignor.  Lockett  v. 
Robinson,  31  Fla.  134,  20  L.  R,  A. 
67  (1893). 

The  assignors  were  held  proper 
plaintiffs  in  a  bill  to  enforce  the 
trust  brought  by  the  assignee, 
when  the  assignors  were  solvent 
and  the  surplus  was  to  be  for  them, 
in  McCampbell  v.  Brown,  48  Fed. 
795   (C.  C.  1895). 

88.  Walker  v.  Miller,  11  Ala. 
1,067  (1847);  Wakeman  v.  Grover, 
4  Paige   (N.  Y.)   23   (1832). 

89.  Fuller  v.  Benjamin,  23  Me. 
255  (1843).  For  the  nature  of  the 
trustee 's  title,  see  the  Bankruptcy 
Act  of  1898,  Sec.  70  (a) ;  and  Sec. 
47  (a)    as    amended,    1910. 

So  the  trustee  in  bankruptcy 
should  be  made  a  party  to  a  suit 
in  the  state  court  to  enforce  pre- 
vious liens  against  the  bankrupt's 
property.  Beall  v.  Walker,  26  W. 
Va.  741  (1885).  And  he  should  be 
a  party  to  a  bill  by  grantees  of 
land  to  reform  their  deeds  con- 
taining   a    misdescription    of    land 


formerly  belonging  to  the  bank- 
rupt. Harris  v.  Cornell,  80  111. 
54  (1875).  And  so  also  to  a  bill 
to  reform  a  contract  made  by  the 
bankrupt  and  to  obtain  damages 
for  its  breach.  Merritt  v.  Coffin, 
152  Ala.  474   (1907). 

90.  Daniell's  Ch.  Pr.  (6th  Am. 
ed.),  p.  256,  citing  Collet  v.  WoUas- 
ton,  3  Bro.  C.  C.  228;  Sells  v.  Hub- 
bard, 2  John.  Ch.  (N.  Y.)  394 
(1817);  Springer  v.  Vanderpool,  4 
Edw.   Ch.   (N.  Y.)   362    (1844). 

The  bankrupt  is  not  a  necessary 
party  to  a  suit  by  the  trustee 
against  the  voluntary  assignee  of 
the  bankrupt,  to  set  aside  a  con- 
veyance made  by  the  latter.  Hard- 
ing V.  Crosby,  Fed.  Cas.  No.  6,050, 
17  Blatchf.  348   (C.  C.  1879). 

Nor  is  he  a  necessary  or  a  proper 
party  to  a  bill  filed  by  his  trustee 
to  set  aside  a  conveyance  made 
in  fraud  of  creditors.  Buffington 
V.  Harvey,  95  U.  S.  99,  24  L.  ed. 
381  (1877);  Benton  v.  Allen,  2  Fed. 
448   (C.  C.  1880). 

But  where  an  insolvent  has  trans- 
ferred property  to  some  of  his  cred- 
itors to  be  sold  and  the  proceeds 
applied  to  the  payment  of  their 
claims  and  the  claims  of  certain 
other  creditors,  all  such  creditors 
must  be  made  parties  to  a  bill  to 
set  aside  such  transfer  brought  by 


PARTIES 


139 


As  a  general  rule,  an  assignee  pendente  lite  need  not 
be  made  a  party  to  a  bill,  or  be  brought  before  the  court, 
for  every  jjerson  purchasing  pendente  lite  is  treated  as 
a  purchaser  with  notice,  and  is  subject  to  all  the  equities 
of  the  persons  under  whom  he  takes.^^ 

§  72.  Accounts.  In  all  cases  of  account,  whether 
brought  by  several  persons  against  one  or  by  one  against 
several,  all  the  persons  on  each  side  having  an  interest 
in  the  account  are  necessary  parties  either  as  plaintiffs 
or  defendants.^2    Thus  as  we  have  seen,  in  a  bill  by  or 


the  insolvent 's  trustee  in  bank- 
ruptcy. Judson  V.  Courier  Co.,  15 
Fed.  541    (C.  C.  1883). 

The  bankrupt  is  not  a  necessary 
party  to  a  bill  brought  against  the 
trustee  to  enjoin  a  judgment  ob- 
tained by  fraud.  Weakly  v.  Mil- 
ler, 1  Tenn.  Ch.  523   (1873). 

The  bankrupt  must  be  defend- 
ant to  foreclosure  proceedings  on 
a  mortgage  not  conveying  his  home- 
stead. Dendel  v.  Sutton,  20  Fed. 
787   (C.  C.  1884). 

91.  Lawrence  v.  Lane,  9  111.  354 
(1847);  Rines  v.  Batchelder,  62  Me. 
95  (1873);  Sedgwick  v.  Cleveland, 
7  Paige  (N.  Y.)  287  (1838);  Hill  v. 
Maury,  21  W.  Va.  162  (1882).  And 
see  note  43a,  ante,  p.  123. 

It  may  be  important,  however,  to 
bring  such  assignees  before  the 
court  by  supplemental  bill,  in  order 
to  take  away  a  cloud  on  the  title 
or  to  compel  the  assignees  to  join 
in  some  act  or  to  join  in  some  con- 
veyance. See  Story's  Eq.  PI.  (10th 
ed.),  Sec.  156;  Mason  v.  R.  Co.,  52 
Me.  82  (1861). 

A  person  who  is  of  record  still 
a  party  plaintiff  may  be  required 
to  answer  a  cross  bill,  although 
since  the  original  bill  was  filed  he 
has  by  the  dissolution  of  the  part- 
nership   parted    with    his    interest. 


Eobinson  Bank  v.  Miller,  47  111. 
App.  310  (1891). 

In  general,  a  plaintiff  who  as- 
signs pendente  lite  should  not  con- 
tinue to  prosecute  the  suit.  Smith 
v.  Brittenham,  109  111.  540  (1884); 
Bailey  v.  Smith,  10  E.  L  29  (1871) ; 
Campbell  v.  Shipman,  87  Va.  655 
(1891). 

92.  Maine.  Beal  v.  Bass,  86  Me. 
325  (1894);  Mudgett  v.  Gager,  52 
Me.  541    (1864). 

Maryland.  Kunkel  v.  Markell, 
26  Md.  390  (1866). 

Massachusetts.  Foster  v.  Bry- 
ant, 16  Gray  190  (1860);  McCabe  v. 
Bellows,  1  Allen  269   (1861). 

Michigan.  Kimmerle  v.  Dowa- 
giac  Gas  Co.,  159  Mich.  34  (1910). 

Mississippi.  Owens  v.  Owens,  84 
Miss.  673  (1904);  Whitney  v.  Cot- 
ton, 53  Miss.  689  (1876). 

New  Jersey.  Cannon  v.  Ballard, 
62  N.  ,J.  E.  383  (1901);  Speakman 
v.  Tatem,  45  N.  J.  E,  388  (1889); 
Keeler  v.  Keeler,  11  N.  J.  E.  458 
(1857). 

Pennsylvania.  Potter  v.  Hoppin, 
10  Phila.  396  (1875);  Petitt  v. 
Baird,  10  Phila.  57  (1873). 

Rhode  Island.  New  England, 
etc.,  Bank  v.  Newport  Steam  Fac- 
tory, 6  R.  I.  154,  73  Am.  Dee.  688 


140 


EQUITY  PRACTICE 


against  partners  seeking  an  account,  all  the  partners  are 
necessary  parties."^  So  if  two  executors  are  bound  to 
render  an  account  they  should  both  be  made  parties.^^ 
So  where  a  bill  is  brought  by  an  obligee  of  a  bond  against 
the  obligor  for  specific  performance  and  an  account,  and 
the  defendant  dies,  the  administrator  with  will  annexed 
is  a  necessary  party.^^  Also  where  different  persons  are 
interested  in  an  account  although  not  in  the  same  right, 
they  must  be  joined ;  such  as  heirs  and  personal  represen- 
tatives, mortgagors  and  mortgagees  and  their  assignees.^" 


(1859) ;  DeWolf  v.  DeWolf,  4  R.  I. 
450    (1857). 

Virginia.  Dabney  v.  Preston, 
25  Gratt.  838   (1875). 

West  Virginia.  Donahoe  v.  Fack- 
ler,  8  W.  Va.  249  (1875);  Wood- 
yard  V.  Buffington,  13  W.  Va.  195 
(1883). 

A  bill  for  an  accounting  may 
be  brought  by  one  plaintiff  on  be- 
half of  himself  and  others.  March 
V.  Eastern  R.  Co.,  40  N.  H.  548,  77 
Am.  Dec.  732  (1860). 

Persons  who  have  received  the 
entire  amount  due  them  are  not 
necessary  parties  to  a  bill  for  an 
accounting  by  persons  in  a  similar 
situation  against  the  person  who 
has  thus  made  a  partial  account- 
ing. Towle  V.  Pierce,  12  Met. 
(Mass.)  329,  44  Am.  Dec.  679 
(1847).  See  for  discussion  of  other 
examples  of  persons  who  are  not 
necessary  parties  in  a  bill  for  an 
account: 

Illinois.  Sturgeon  v.  Burrall,  1 
111.  App.  537   (1877). 

Maine.  Lawrence  v.  Rokes,  53 
Me.  110  (1865). 

Massachusetts.  Palmer  v.  Ste- 
vens, 100  Mass.  461  (1868);  Bur- 
lingame  v.  Hobbs,  12  Gray  (Mass.) 
367    (1859). 

Michigan.     Bullis     v.     Farmers, 


etc.,  Bank,  143  Mich.  632  (1906); 
Grady  v.  Hughes,  80  Mich.  184 
(1890). 

New  Jersey.  Hooper  v.  Holmes, 
11  N.  J.  E.  122  (1856). 

United  States.  McGahan  v.  Nat. 
Bank,  156  U.  S.  218,  39  L.  ed.  403 
(1894);  Pac.  R.  Co.  v.  Atlantic, 
etc.,  R.  Co.,  20  Fed.  277  (C.  C. 
1884). 

Persons  who  are  not  necessary 
parties  may  often  be  joined  as 
proper  parties.  Penniman  v.  Jones, 
58  N.  H.  447  (1878);  Borough  v. 
Alyea,  53  N.  J.  E.  580  (1895); 
Mills  V.  Hurd,  32  Fed.  127  (C.  C. 
1887), 

93.  See  §  70,  <i)ite,  p.  131. 

94.  Connolly  v.  Wells,  33  Fed. 
205   (C.  C.  1887). 

So  of  two  trustees.  Howth  v. 
Owens,  29  Fed.  722  (C.  C.  1887). 
Compare  Plume,  etc.,  Co.  v.  Bald- 
win, 87  Fed.  785  (C.  C.  1898). 

95.  Hubbard  v.  Johnson,  77  Me. 
139   (1885). 

96.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  218,  citing:  Moffatt  v.  Farqu- 
harson,  2  Bro.  Ch.  338;  Evans  v. 
Stokes,  1  Keen  24;  Stafford  v.  City 
of  London,  2  Eq.  Ab.  166;  Cow- 
slad  V.  Cely,  Prec.  Ch.  83;  Scurry 
v.  Morse,  9  Mod.  89;  Darthez  v. 
Clemens,  6  Beav.  165. 


PARTIES 


141 


§  73.  Heirs  and  devisees.  As  a  general  rule  in  any  suit 
in  equity  against  or  for  the  benefit  of  the  estate  of  a 
deceased  person,  where  the  real  assets  are  or  may  be 
concerned,  the  heirs  or  devisees,  as  the  case  may  be, 
are  necessary  parties.^'''  Thus  in  a  bill  against  an  admin- 
istrator praying  that  he  should  convey  certain  real  estate 
to  the  plaintiff,  it  was  held  that  the  bill  could  not  be 
maintained  but  should  have  been  brought  against  the 
heirs.*^*  So  as  has  been  seen,  in  a  bill  to  redeem  from  a 
mortgage  in  fee,  when  the  mortgagor  or  mortgagee  is 
dead,  and  in  a  bill  to  foreclose  when  the  mortgagor  is 
dead,  the  heirs  or  devisees  are  necessary  parties  either  as 
plaintiffs  or  defendants.^^  So  where  a  bill  is  brought 
by  a  vendor  for  specific  performance  of  a  contract  for  the 
sale  of  land,  and  to  enforce  the  lien  for  the  purchase 
money  on  the  land  itself,  the  heirs  or  devisees,  as  the 
case  may  be,  of  the  deceased  purchaser,  are  necessary 


97.  Alabama.  Parker  v.  Parker, 
99  Ala.  239  (1892);  Teague  v.  Cor- 
bitt,  57  Ala.  529  (1877). 

Florida.  Indian  Eiver,  etc.,  Co. 
V.  Wooten  et  al.,  48  Fla.  271 
(1904);  Steere  v.  Tention,  46  Fla. 
510   (1903). 

Illinois.  Skiles  v.  Switzer,  11 
111.  533  (1850);  Bonny  v.  Bonny, 
36  111.  App.  129  (1890),  here  held 
not  necessary. 

Maine.  Strout  v.  Lord,  103  Me. 
410  (1908);  Wiley  v.  Davis,  10  A. 
493   (Me.  1887). 

Massachusetts.  Busiere  v.  Eeil- 
ly,  189  Mass.  518  (1905). 

Mississippi.  Campbell  v.  Doyle, 
57  Miss.  292  (1879);  Pinson  v. 
Williams,  23  Miss.  64  (1851). 

New  Jersey.  McCartin  v.  Tra- 
phagen,  43  N.  J.  E.  323  (1887); 
Wooster  v.  Cooper,  56  N.  J.  E.  579 
(1897). 

Rhode  Island,  DeWolf  v.  De- 
Wolf,  4  R.  I.  450   (1857). 


Tennessee.  Spencer  v.  Goodlett, 
104  Teun.  648  (1900). 

Virginia.  Taylor  v.  Forbes' 
Admx.,  101  Va.  658  (1903). 

West  Virginia.  Bruce  v.  Bicker- 
ton,  18  W.  Va.  342   (1881). 

United  States.  Bland  v.  Free- 
man, 29  Fed.  669  (D.  C.  1887);  Mc- 
Donnell V.  Eaton,  18  Fed.  710  (C. 
C.  1883). 

But  by  Federal  Equity  Rules  of 
1913,  No.  41,  in  suits  to  execute 
the  trust  of  a  will,  it  is  not  neces- 
sary to  make  the  heir  a  party,  al- 
though the  heir  is  a  proper  party 
when  the  plaintiff  wishes  to  estab- 
lish the  will  against  him. 

98.  Simmons  v.  Moulton,  27  Me. 
496   (1847). 

99.  See  §  65,  note  10,  ante,  p. 
Ill;  §66,  note  20,  ante,  p.  113; 
§  67,  notes  29  and  29a,  ante,  p.  116; 
§  69,  note  53,  ante,  p.  125. 


142 


EQUITY  PRACTICE 


parties  as  well  as  the  personal  representative,  for  the 
heirs  or  devisees  are  entitled  to  indemnity  from  the  per- 
sonal assets.^*^*^  The  heirs  or  devisees  of  the  vendor  must 
be  parties  to  such  a  bill  brought  by  his  personal  repre- 
sentatives,^ and  the  heir  or  devisee  of  the  vendor  is  a 
necessary  party  to  the  vendee's  bill.^  The  heir  or  de- 
visee of  the  vendee  is  the  proper  and  necessary^  party  to 
compel  specific  performance  by  the  vendor.^ 

In  a  bill  where  the  interests  of  the  heirs  of  a  deceased 
person  are  involved,  all  the  heirs  are  necessarj^  parties, 
and  if  brought  by  or  against  a  portion  only,  it  is  demur- 
rable.^   So  in  a  bill  bv  certain  heirs  of  the  creators  of  a 


100,  Moore  v.  Alexander,  81  Ala. 
509  (1886);  McCoy  v.  Broderick, 
3  Sneed  (Tenn.)  203  (1855);  Mor- 
ris V.  Peyton,  10  W.  Va.  1  (1877); 
Lewis  V.  Hawkins,  23  Wall.  119, 
23  L.  ed.  113  (1875).  See  also 
Hiekey  v.  Doyle,  66  N.  H.  336 
(1890);  Taylor  v,  Forbes,  101  Va, 
658   (1903). 

1.  lUinois.  Burger  v.  Potter,  -32 
111.  66    (1863). 

Mississippi.  Kimbrough  v.  Cur- 
tis, 50  Miss.  117  (1874);  Adams  v. 
Harris,  47  Miss.  144   (1872). 

New  Jersey,  Coles  v.  Feeney,  52 
N.  J.  E,  493  (1894).  Compare 
Hubbard  v.  Clark,  7  Atl.  26  (N.  J, 
E.   1886). 

Tennessee,  McCoy  v.  Broderick, 
3  Sneed   (Tenn.)   203   (1855). 

West  Virginia.  Callaghan  v. 
Circle,  12  W.  Va.  562  (1878). 

United  States.  Morgan  v.  Mor- 
gan, 2  Wheat.  290,  4  L.  ed.  242 
(1817). 

Alabama.  Harris  v.  Johnson,  58 
So.  426   (Ala.   1913). 

2.  Florida.  Eain  v.  Eoper,  15 
Fla.   121    (1875). 

Illinois,  Duncan  v.  Wickliffe,  u 
m.  452   (1843). 


New  Hampshire.  Kidder  v.  Barr, 
35  N,  H,  235   (1857). 

Maine.  Hubbard  v.  Johnson,  77 
Me.  139   (1885). 

New  Jersey,  Collins  v.  Leary, 
71  Atl.  603  (N.  J.  E.  1908);  Miller 
V.  Henderson,  10  N,  J,  E.  320 
(1855), 

Tennessee.  Hale  v.  Darter,  5 
Humph.  (Tenn.)  79  (1844). 

United  States.  Morgan  v,  Mor- 
gan, 2  Wheat.  290,  4  L.  ed.  242 
(1817). 

3,  Putnam  v.  Tinkler,  83  Mich. 
628  (1890);  House  v.  Dexter,  9 
Mich.  246  (1861);  Young  v.  Young, 
45  N.  J.  E,  27  (1889);  Hand  v. 
Jacobus,  19  N.  J.  E.  79   (1868), 

4,  McDowell  v.  Lawless,  6  T,  B. 
Mon.  (Ky.)  139  (1827);  Blackerby 
V.  Holton,  5  Dana  (Ky.)  520  (1837). 

But  where  a  portion  of  the  heirs 
have  only  a  contingent  interest  and 
will  not  be  prejudiced  by  the  de- 
cree they  need  not  be  made  par- 
ties. Adams  v.  Stevens,  49  Me. 
362  (1861).  And  in  a  suit  by  one 
or  more  heirs  to  recover  assets,  an- 
other heir  and  distributee,  while  a 
proper  party,  is  not  indispensable 
whenever    the    court    can    proceed 


PARTIES 


143 


trust  against  the  trustee  to  enforce  the  trust,  where  three 
of  the  heirs  were  omitted,  it  was  held  that  they  were 
necessary  parties  either  as  plaintiffs  or  defendants.^ 

§  74.  Executors  and  administrators.  In  general  it  may 
be  stated  that  whenever  the  personal  assets  of  the 
deceased  in  the  hands  of  his  executors  or  administrators 
or  belonging  to  them,  may  be  affected  by  the  decree  they 
are  necessary  parties.*'  Thus  in  a  bill  to  redeem  a  mort- 
gage, the  executor  or  administrator  of  the  deceased  mort- 


and  do  justice  to  the  parties  before 
it  without  injury  to  the  absent 
person.  Van  Bokkelen  v.  Cook, 
Fed.  Cas.  No.  16,831,  5  Sawy.  587 
(C.  C.  1879). 

5.  Hussey  v.  Dole,  24  Me.  20 
(1844). 

6.  Delaware.  Walker  v.  Cald- 
well, 8  Del.  Ch.  91  (1899),  bill  by 
legatee  to  recover  a  legacy. 

Florida.  Merritt  v.  Daffin,  24 
Fla.   320    (1888). 

Illinois.  Tinker  v.  Babcock,  204 
111.  571  (1903);  Geiger  v.  Wilson, 
139  111.  392  (1891),  bill  to  estab- 
lish equitable  lien  on  funds  of  the 
estate. 

Maine.  Strout  v.  Lord,  103  Me. 
410   (1909). 

Maryland.  Lumpkin  v.  Lump- 
kin, 108  Md.  470  (1908),  construc- 
tion of  a  will  involving  personal 
estate. 

Massachusetts.  Brown  v.  Bixby, 
190  Mass.  69  (1906). 

Mississippi.  Davis  v.  Yerby,  1 
S    &  M.  Ch.  508  (1842). 

New  Hampshire.  Cole  v.  Am. 
Bapt.,  etc.,  Soc,  64  N.  H.  445 
(1887),  bill  to  enforce  a  contract 
made  by  the  deceased  in  respect 
to  her  property. 

New  Jersey.  Methodist,  etc., 
Church  V.  Hammell,  73  N.  J.  E. 
293    (1907);    Loehnberg   v.    Loehn- 


berg,  63  N.  J.  E.  496  (1902) ;  Cong. 
Church  V.  Benedict,  62  N.  J.  E. 
812  (1901),  aff.  59  N.  J.  E.  136 
(1899),  bill  to  charge  legacy  on 
land;  Kempton  v.  Bartine,  60  N.  J. 
E.  411  (1900),  bill  to  enjoin  ex- 
ecutor and  take  title  from  him; 
Melick  V.  Melick,  17  N.  J.  E.  156 
(1864),  creditors'  suit. 

Bhode  Island.  Woonsocket  Inst. 
V.  Ballou,  13  Atl.  401  (E.  L  1888), 
bill  to  charge  debt  on  land. 

Tennessee.  Willard  v.  Cunning- 
ham, 48  S.  W.  399  (Tenn.  1898), 
attachment  bill;  Gray  v.  Hays,  26 
Tenn.  588  (1847),  bill  for  recovery 
of   property   conveyed   to   testator. 

Virginia.  Spooner  v.  Hilbish,  92 
Va.  333  (1895),  suit  to  invalidate 
assignment  of  life  insurance  pol- 
icy; Kobertson  v.  Gillenwaters,  85 
Va.  116  (1888),  bill  to  recover  leg- 
acy; Beal's  Admrs.  v.  Taylor's 
Admr.,  2  Gratt.  532,  44  Am.  Dec. 
398  (1846),  bill  to  subject  realty  to 
payment  of  debt. 

West  Virginia.  Bryan  v.  Mc- 
Cann,  55  W.  Va.  372  (1904);  Sum- 
merville  v.  Summerville,  26  W.  Va. 
484    (1885). 

United  States.  Duchesse  d'Amy 
V.  Soutter,  35  Fed.  809  (C.  C. 
1888);  Allen  v.  Simons,  F.  C.  237, 
1  Curt.  122  (C.  C.  1852),  bill  to 
enforce  a  trust. 


144  EQUITY  PRACTICE 

gagee  is  a  necessary  party  defendant  as  vreW  as  the  heir, 
since  the  personal  representative  is  entitled  to  the  mort- 
gage money  when  paid.'^  Likewise  in  a  bill  to  foreclose, 
the  executor  or  administrator  is  a  necessaiy  party  plain- 
tiff for  the  same  reasons.^  So  where  a  trustee  holding 
real  estate  in  fee  dies  insolvent,  so  that  the  administrator 
has  a  contingent  interest  in  the  real  estate  of  which  he 
died  seized,  to  be  sold  and  administered  for  the  benefit 
of  his  creditors,  the  administrator  is  a  necessary  party  as 
well  as  the  heirs  to  a  bill  to  establish  the  trust;  ^  and 
where  a  trust  is  of  a  chattel  interest  the  administrator  or 
executor  of  the  trustee  is  the  only  necessary  party.^°  It  is 
usually  held,  however,  that  the  administrator  of  a 
deceased  debtor  need  not  be  a  party  to  a  bill  seeking  a 
reconveyance  of  real  estate  conveyed  by  the  debtor  with 
intent  to  defraud  creditors.^ ^ 

Where  there  are  several  executors  or  administrators, 
all  who  are  qualified  and  are  serving  should  generally 
be  made  parties.^- 

7.  See  cases  cited  §  65,  notes  10  Norwood,  81  Ala.  512  (1886) ; 
and  11,  ante,  p.  Ill,  and  §  66,  note  Doekray  v.  Mason,  48  Me.  178 
20,  ante,  p.  113.  (1859);   Taylor  v.  Webb,  54  Miss. 

8.  See  cases  under  foreclosure,  36  (1876);  March  v.  Munn,  40  N. 
§67,  note  28,  unte,  p.  115.  J.   E.  343    (1885),  aff,   38  N.  J.  E. 

9.  Unitarian  Society  v.  Wood-  410  (1884);  McCutcheon  v.  Pigue, 
bury,  14  Me.  281,  282   (1837).  4  Heisk.   (Tenn.)   565   (1871). 

Where,  pending  an  action  to  set  Contra.     McDowell    v.    Cochran, 

aside    a    deed    for    duress,    one    of  11   111.   31   (1849);   Peaslee  v.  Bar- 

the   defendants   died  testate,  leav-  ney,   1   D.   Chip.    (Vt.)    331,  6  Am. 

ing   his   property   to    executors    on  Dec.  743   (1814);  Hall  v.  Jones,  75 

certain  specified  trusts,  the  execu-  Va.   Ill    (1880),   semble;  Boggs   v. 

tors   are   necessary   parties   to   the  McCoy,  15  W.  Va.  344  (1879). 

action,  since  they  have  an  interest  The  different  results  reached  by 

conferred   on   them   by   statute   re-  the    above    cases   probably   depend 

lating  to  the  sale  of  lands  to  pay  on   the   differences   in    the   various 

debts.     Ball  v.  Ward,  73  N.  J.  Eq.  states  between  the  statutory  rights 

440    (1907).  of   the   administrators   in   the   real 

10.  Story's    Eq.    PI.    (10th    ed.),  estate  of  their  decedents. 

Sec.  211,  citing  1  Eq.  Ab.  72.  12.  Rinehart   v.   Rinehart,   15  N. 

11.  Merchants'  N.  Bank  v.  Ma-  J.  E.  44  (1862);  Marsh  v.  Oliver, 
Gee,  108  Ala.  304  (1895);  Coffey  v.       14   N.    J.    E.    (1862);    In   re   Cour- 


PARTIES 


145 


§  75.  Other  Cases.  We  have  now  reviewed  several 
classes  of  cases  comprising  some  of  the  most  important 
and  frequent  situations  where  the  question  arises,  Who 
are  necessary  parties!  Other  cases  from  the  recent  vol- 
umes of  the  reports  of  each  of  the  states  are  collected  in 
the  footnote.^^     All  these  cases  are  here  given  rather 


sen,  4  N.  J.  E.  408  (1843);  Con- 
nolly V.  Wells,  33  Fed.  205  (C.  C. 
1887);  Howth  v.  Owens,  29  Fed. 
722  (C.  C.  1887).  But  an  execu- 
tor or  administrator  may  be  omit- 
ted in  certain  circumstances.  Per- 
sonnelle  v.  Johnson,  40  N.  J.  E.  173 
(1885);  Plume,  etc.,  Co.  v.  Bald- 
win, 87  Fed.  785  (C.  C.  1898). 

Where  an  executor  or  administra- 
tor refuses  to  join  as  co-plaintiff, 
or  cannot  properly  be  so  joined, 
in  a  suit  for  the  benefit  of  the 
estate,  he  should  be  made  a  defend- 
ant. Mulford  V.  Allen,  2  N.  J.  E. 
288  (1840);  Monmouth,  etc.,  Co. 
V.  Means,  151  Fed.  159,  80  C.  C.  A. 
527    (1906). 

13.  Contracts  and  Deeds.  Can- 
cellation,  Reformation,   Rescission. 

Alabama.  A  widow  to  whom 
dower  has  not  been  assigned  is  not 
a  necessary  party  to  a  bill  brought 
by  children  to  compel  surrender  of 
a  deed  given  by  the  decedent  and 
a  sale  of  the  property  for  distribu- 
tion. Francis  v.  Sandlin,  43  So. 
829  (Ala.  1907).  The  defendant's 
grantor  is  a  necessary  party  to  a 
bill  for  the  cancellation  of  a  deed 
made  while  the  plaintiff  was  in  ad- 
verse possession.  Davis  v.  Den- 
ham,  145  Ala.  247  (1906).  Subse- 
quent bona  fide  purchasers  from  a 
vendee  are  necessary  parties  to  a 
l>ill  for  cancellation.  Mobile,  etc., 
Co.  V.  Gass,  129  Ala.  214  (1901). 
The  sheriff  is  not  a  necessary  party 
to  a  bill  to  reform  a  sheriff's  deed. 
Whitehouse  E.  P.  Vol.  I — 10 


Eeddick  v.  Long,  124  Ala.  260 
(1900).  But  he  is  at  least  a  proper 
party  to  a  bill  to  cancel  a  deed 
made  by  him  in  collusion  with  the 
debtor.  Worthington  v.  Miller, 
134  Ala.  420  (1902). 

Florida.  In  a  suit  to  reform  a 
deed,  the  grantor  and  grantee  and 
those  claiming  under  them  are  nec- 
essary parties.  Indian,  etc.,  Co. 
V.  Wooten,  48  Fla.  271  (1905).  In 
a  suit  to  cancel  a  deed,  the  per- 
sons who  executed  it  are  neces- 
sary parties,  where  it  has  warranty 
clauses.  Florida,  etc.,  Co.  v.  An- 
derson, 50  Fla.  501  (1905).  But 
otherwise  they  are  not  necessary 
parties.  West  Coast,  etc.,  Co.  v. 
Griffin,  54  Fla.  621  (1907).  A  mort- 
gagee is  a  necessary  party  to  a  bill 
to  reform  an  insurance  policy 
which  is  conditionally  payable  to 
the  mortgagee.  Taylor  v.  Glen 
Falls  Ins.  Co.,  44  Fla.  273   (1902). 

Illinois.  The  heir  suing  to  set 
aside  his  ancestor's  deed  must 
make  all  other  heirs  parties.  Wei- 
gand  v.  Rutschke,  253  111.  260 
(1913).  Persons  other  than  the 
vendor  are  not  in  general  neces- 
sary parties  to  a  bill  by  the  vendee 
to  cancel  the  contract.  Harding  v. 
Olson,  177  111.  298  (1898).  The 
holders  of  negotiable  notes  secured 
by  a  trust  deed  are  in  general  nec- 
essary parties  to  a  bill  to  cancel 
the  deed.  Chandler  v.  Ward,  188 
111.  322  (1900).  In  general  as  to 
parties  in  suits  for  reformation  or 


146 


EQUITY  PRACTICE 


for  illustration  than  for  a  comprehensive  collection. 
Citations  of  cases  determining  who  are  prima  facie 
necessary  i^arties  under  various  circumstances  and  con- 
ditions might  be  multiplied  indefinitely.    The  answer  to 


cancellation  see  Abernethie  v. 
Rich,  229  111.  412  (1907),  and  Vial 
V.  Norwich,  etc.,  Soc,  172  111.  App. 
l.U,  aff.  257  111.  354   (1913). 

Maine.  The  parties  to  the  deed 
are  in  general  necessary  parties 
to  the  suit  to  reform  it.  Cole  v. 
Fickett,  95  Me.  265   (1901). 

Massacliusetts.  A  non-resident 
corporation  is  a  proper  substantial 
but  not  a  necessary  party  to  a  bni 
to  reform  a  contract  entered  into 
by  its  agent  in  its  behalf.  Eustis, 
etc.,  Co.  v.  Saco  Brick  Co.,  19S 
Mass.  212  (1908).  The  personal 
representative  of  a  deceased  non- 
resident who  was  jointly  interest- 
ed in  the  contract  with  a  resident 
defendant  is  not  a  necessary  party 
to  a  bill  to  rescind  the  contract 
for  fraud  and  recover  damages. 
Old  Dominion  Copper  Co.  v.  Bige- 
low,  188  Mass.  315,  108  Am.  St. 
Eep.   479    (1905). 

Mississippi.  In  a  bill  to  reform 
a  deed,  the  original  grantor  who 
intended  to  convey  to  plaintiff's 
grantor,  and  also  plaintiff's 
grantor,  must  be  parties,  although 
the  original  grantor  has  later  con- 
veyed title  to  another  person  who 
now  holds  it.  Gates  v.  Union,  etc., 
Co.,-  92  Miss.  227  (1908).  As  to 
parties  to  a  bill  to  cancel  a  deed 
see  Beason  v.  Coleman,  92  Miss. 
622  (1908);  Burroughs  v.  Jones, 
78  Miss.  235  (1900);  Tuteur  v. 
Brown,  74  Miss.  774   (1897). 

New  Jersey.  The  owner  or  first 
mortgagee  is  not  a  necessary  party 
to  a  bill  by  a  second  mortgagee 
against   an   insurance   company   to 


reform  the  policy  so  as  to  protect 
his  interest.  Kelsey  v.  Agricul- 
tural Insurance  Co.,  79  Atl.  39 
(X.  J.  E.  1911).  Grantor  to  the 
husband  of  lands  conveyed  by  hus- 
band and  wife  through  duress  is 
a  necessary  party  to  the  wife 's  bill 
to  set  aside  both  conveyances. 
Fairchild  v.  Fairehild,  44  Atl.  944 
(X.  J.  E.  1899). 

Pennsylvania.  Grantees  from  a 
fictitious  grantee  are  necessary 
parties  to  a  bill  to  set  aside  the 
original  deed  for  fraud  and  duress. 
Gilkeson  v.  Thompson,  210  Pa.  355 
(1904). 

Tennessee.  The  vendor  is  not  a 
necessary  party  to  a  bill  for  re- 
formation by  the  husband  against 
the  wife's  heirs.  Owen  v.  Wil- 
liams, 55  S.  W.  18  (Tenn.  Ch.  App. 
1S99). 

Virginia.  One  assuming  to  act 
as  agent  for  the  plaintiff  while  in 
fact  acting  as  agent  for  the  de- 
fendant is  a  necessary  party  to  a 
bill  for  rescinding  the  contract. 
Bonsai  v.  Camp,  111  Va.  595 
(1911). 

West  Virginia.  An  adverse 
claimant  is  not  a  necessary  party 
to  a  bill  to  cancel  a  contract  for 
sale  because  of  the  existence  of 
his  claim.  Morrison  v.  Waggy,  43 
W.  Va.  405  (1897). 

Contracts.     Specific     Performance, 
Vendor  and  Purchaser. 

Delaware.  The  holder  of  a  sub- 
sequent executory  contract  from 
the   defendant   is   not   a   necessary 


PARTIES 


147 


the  question  depends  largely  upon  the  details  of  each 
individual  case  and  it  would  hardly  be  profitable  to  de- 
vote a  large  amount  of  space  to  a  mere  digest  of  cases, 
where  no  question  of  the  general  theorj'-  of  equity  pro- 


party,  but  a  purchaser  with  notice 
13  necessary.  Ehrenstrom  v.  Phil- 
lips, 77  Atl.  81    (Del.  Ch.  1910). 

Illinois.  A  third  person  entitled 
to  a  commission  on  the  sale  is  not 
a  necessary  party  to  the  bill  for 
specific  performance.  Clark  v. 
Jankowski,  255  111.  129,  99  N.  E. 
338  (1912).  In  a  bill  against  a 
railroad  to  enforce  its  covenant  to 
use  exclusively  the  terminal  facili- 
ties of  another  company,  the  lat- 
ter company  is  a  necessary  party, 
although  the  tenant  companies 
own  the  stock  of  the  latter  com- 
pany and  are  themselves  before 
the  court.  Chicago,  etc.,  E.  Co.  v. 
Chicago,  etc.,  E.  Co.,  172  111.  App. 
156  (1913).  The  insured  is  not  a 
necessary  party  to  a  bill  by  the 
beneficiary  to  enforce  the  delivery 
of  the  policies  by  the  insurer. 
State,  etc.,  Bank  v.  United  States 
L.  Ins.  Co.,  142  111.  App.  624,  aff. 
87  N.  E.  396  (1909) 

Pennsylvania.  The  bill  should 
not  include  as  defendants  persons 
claiming  no  title  under  the  con- 
tract but  asserting  rights  under  a 
subsequent  transaction.  Schaeifer 
v.  Herman,  237  Pa.  86  (1913). 

West  Virginia.  The  purchaser 
of  timber  on  a  tract  subject  to 
vendor's  lien  is  a  necessary  party 
to  a  bill  to  enforce  the  lien;  but 
the  purchaser  of  the  land  at  a 
tr.x  sale  is  not.  Clark  v.  Harper's 
Ferry  Timber  Co.,  73  S.  E.  919  (W. 
Va.  1913).  A  subsequent  trust 
lien  creditor  holding  a  prior  ven- 
dor's lien  as  collateral  security  is 
a    necessary    party.      Elkins    Nat. 


Bank  v.  Eeger,  73  S.  E.  244  (W. 
Va.  1911).  Adverse  claimants  to 
the  vendor  and  vendee  are  im- 
proper parties.  Miller  v.  Morrison, 
47  W.  Va.  664   (1900). 

Creditors'  Suits  to  set  aside 
Fraudulent  Conveyances  and  to 
Reach  and  Apply. 

Alabama.  A  prior  bona  fide 
mortgagee  is  not  a  necessary  party. 
Cowan  V.  Stagg,  59  So.  153  (Ala. 
1913);  Freeman  v.  Stuart,  119  Ala. 
158  (1898).  The  sheriff  is  a  neces- 
sary party  to  a  bill  to  set  aside  a 
collusive  attachment.  Plaster  v. 
Throne,  etc.,  Co.,  123  Ala.  360 
(1899).  The  fraudulent  grantee  is 
a  necessary  party.  Smith,  Dim- 
mick,  etc.,  Co.  v.  Teague,  119  Ala. 
385  (1898).  The  grantor  of  land 
conveyed  to  a  third  person  at  the 
request  of  and  for  consideration 
paid  by  the  debtor  is  not  a  neces- 
sary party.  Southern  E.  Co.  v. 
Hartshorne,  150  Ala.  217  (1907). 

Maryland.  All  having  a  present 
interest  in  the  property  conveyed 
are  necessary  parties.  Whitman  v. 
Dorsey,  110  Md.  421  (1909);  Mish- 
ler  V.  Finch,  104  Md.  183  (1906); 
Talbott  V.  Leatherbury,  92  Md.  166 
(1900). 

Michigan.  The  seller  is  a  neces- 
sary party  to  a  bill  to  set  aside 
his  conveyance  under  the  Bulk 
Sales  act.  Brixler  v.  Fry,  157 
Mich.  314   (1909). 

New  Jersey.  The  grantee  is  a 
necessary  party.  Terhune  v.  Sib- 
bald,  55  N.  J.  E.  236  (1897). 


148 


EQUITY  PRACTICE 


cedure  is  involved.  To  attempt  to  furnish  a  precedent 
for  each  class  of  circumstance  or  condition  that  may 
arise  is  obviously  impracticable.  The  reader  should  ap- 
ply the  general  principles  governing  the  joinder  of  par- 


Virginia.  The  maker  of  a  note 
is  a  necessary  party  to  a  suit  to 
reach  and  apply  the  lands  of  the 
indorser.  Fidelity,  etc.,  Co.  v.  En- 
gleby,  99  Va.  168  (1901).  The 
trustees  in  all  deeds  of  trust  on 
the  property  sought,  and  the  cred- 
itors named  in  these  deeds,  are 
necessary  parties.  Carnahan  v. 
Ashworth,  31  S.  E.  65   (Va.  1898). 

West  Virginia.  The  grantor  to 
the  debtor 's  wife  is  not  a  neces- 
sary party.  Kirby  v.  Steele,  65  W. 
Va.  719  (1909).  Those  creditors 
who  have  suits  pending  against  the 
same  property  must  be  joined  as 
parties.  Crim  v.  Price,  46  W.  Va. 
374    (1899). 

Injunctions. 

Florida.  Neither  former  owners 
nor  the  city  are  necessary  parties 
to  a  bill  to  enjoin  persons  from 
trespassing  on  private  land  under 
a  claim  that  it  is  a  public  park. 
Florida,  etc.,  E.  Co.  v,  Worley,  49 
Fla.   297    (1905). 

Illinois.  The  bank  is  a  necessary 
party  to  a  taxpayer's  bill  to  enjoin 
the  issue  of  bonds  collusively  sold 
to  the  bank.  Lussein  v.  Sanitary 
District,  192  111.  404   (1901). 

Maine.  A  former  treasurer  is  not 
a  necessary  party  to  a  bill  to  enjoin 
the  collection  of  a  note  which  he 
issued  without  consideration.  Clarke 
v.  Marks,  88  Atl.  718  (Me.  1913). 

Maryland.  The  consumer  is  not 
a  necessary  party  to  a  suit  by  a 
gas  company  to  restrain  a  corpora- 
tion from  attaching  its  appliances 


to  the  gas  company's  fixtures  in 
the  consumer's  possession  Blon- 
dell  V.  Consolidated  Gas  Co.,  89 
Md.  732,  46  L.  K.  A.  187  (1899). 

Massachusetts.  To  a  bill  by  one 
company  to  enjoin  a  person  from 
selling  the  goods  of  a  second  com- 
pany the  second  company  is  not  a 
necessary  party.  Butterick  Co.  v. 
Fisher,  203  Mass.   122    (1909). 

Michigan.  The  assignee  of  an  in- 
terest in  a  contract  is  a  necessary 
defendant  to  a  suit  to  restrain  the 
recording  of  the  contract.  Ranney 
V.  Stoll,  140  N.  W.  607  (Mich. 
1913). 

New  Jersey.  Only  the  persons 
in  immediate  charge  of  and  using 
improperly  an  armory  are  neces- 
sary defendants  to  an  injunction 
bill.  Hamil  v.  Dungan,  68  Atl. 
1096  (X.  J.  E.  1908). 

United  States.  Co-trespassers 
are  not  necessary  defendants  to  an 
injunction  bill.  People's  Tel.,  etc., 
Co.  V.  East  Tenn.  Tel.  Co.,  103 
Fed.   212,  43   C.  C.   A.   185    (1900). 

Mechanics'  Liens. 

Michigan.  The  principal  con- 
tractor is  a  neeessar}'  defendant 
to  a  sub-contractor's  bill  to  en- 
force a  mechanics'  lien.  Godfrey 
etc.,  Co.  V.  Kline,  160  Mich.  565 
(1910). 

Tennessee.  Both  the  principal 
contractor  and  the  property  owner 
are  necessary  parties  defendant  to 
a  sub-contractor's  suit  to  enforce 
a   mechanics'  lien.     Warner   v.   A. 


PARTIES 


149 


ties  heretofore  set  forth  in  this  chapter  to  the  particular 
circumstances  of  his  own  case. 

§  76.  Defects  as  to  parties — Non- joinder.    As  we  have 
seen,  it  is  always  a  fatal  defect  of  pleading  as  to  parties 


H.  Yates  &  Co.,  118  Tenn.  548 
(1907). 

Virginia.  A  subsequent  incum- 
brancer is  a  proper  tiiough  not  a 
necessary  party  to  a  bill  to  en- 
force a  mechanics'  lien.  Monk  v. 
p]xposition,  etc.,  Co.,  68  S.  E.  280 
(Va.  1910). 

West  Virginia.  The  principal 
contractor  is  a  necessary  party. 
William  Janes,  etc.,  Co.  v.  Farley, 
76  S.  E.  169  (W.  Va.  1913);  Augir 
V.  Warder,  70  S.  E.  719  (W.  Va. 
1911).  Conflicting  lienors  are  also 
necessary  parties.  Gall  v.  Gall,  50 
W.  Va.  523  (1901). 

Partition. 

Illinois.  Tenants  in  possession 
are  necessary  parties.  Wilson  v. 
Wilson,  257  111.  296  (1913).  A  for- 
mer administrator  of  the  ancestor's 
estate  is  not  a  necessary  party  to 
a  bill  for  partition  among  the 
heirs,  even  though  the  bill  ques- 
tions the  validity  of  the  adminis- 
trator's sale.  Manternach  v.  Studt, 
240  111.  464  (1909). 

Maine.  A  tenant  in  common 
must  be  a  party  if  known.  Eich- 
ardson  v.  Watts,  94  Me.  476  (1901). 

Maryland.  Eemaindermen  un- 
der a  trust  executed  by  a  joint 
owner  are  necessary  parties,  al- 
though the  trustee  holds  legal  title. 
Numsen  v.  Lyon,  87  Md.  31  (1898). 

Michigan.  An  administrator  is 
not  a  necessary  party  to  a  bill  for 
partition  among  heirs  where  the 
decedent  left  no  debts.  Mertens 
V.  Cook,  135  Mich.  35  (1903).  A 
railroad   company   is   not   a    neces- 


sary party  where  neither  plaintiff 
nor  defendant  claims  adversely  to 
its  right  of  way.  Hooper  v.  Mc- 
Allister, 115  Mich.  174  (1897). 

New  Jersey.  A  trustee  holding 
legal  title  under  a  will  is  a  neces- 
sary party  to  a  bill  for  partition 
among  heirs.  Mackey  v.  Mackey, 
71  N.  J.  E.  686  (1906). 

Rhode  Island.  The  mortgagee  of 
the  whole  premises  is  not  a  neces- 
sary party.  Updike  v.  Adams,  22 
R.  I.  432   (1901). 

Virginia.  Mortgagees  of  the  en- 
tire prenfises  are  usually  not  neces- 
sary. Martin  v.  Martin,  95  Va.  26 
(1897).  But  see  Conrad's  Admr. 
v.  Fuller,  98  Va.  16  (1900). 

West  Virginia.  Trustees  and 
creditors  under  deeds  of  trust,  and 
judgment  creditors  are  not  neces- 
sary parties  to  a  partition  proceed- 
ing where  a  sale  is  decreed,  unless 
creditors  of  a  tenant  in  common. 
Waldron  v.  Harvey,  54  W.  Va.  608, 
102  Am.  St.  Rep.  959  (1904);  Chil- 
ders  V.  Loudin,  51  W.  Va.  559 
(1902). 

Wills  and  Estates. 

Persons  who  may  be  legatees  or 
beneficiaries  by  a  possible  con- 
struction must  be  parties  to  a  bill 
for  construction  of  the  will. 
Waker  v.  Booraem,  68  N.  J.  E.  345 
(1904);  Manson  v.  Jack,  62  Atl. 
344  (N.  J.  E.  1905);  Gaddess  v. 
Norris'  Exors.,  102  Va.  625 
(1904);  Stevens  v.  Smith,  126  Fed. 
706,  61  C.  C.  A.  624   (1903). 

The  holder  of  the  mortgage  debt 
is  not  a  necessary  party  to  a  bill 


150  EQUITY  PRACTICE 

not  to  join  a  necessary  party,  since  no  decree  can  be  liad 
witliout  him.  With  proper  parties  substantial,  however, 
it  has  been  shown  to  be  otherwise,  since  they  can  be  dis- 
pensed with  when  absent,  unknown  or  too  numerous. 
But  it  is  to  be  remembered  that  their  interests  are  of 
such  a  nature  that  the  court  will  always  require  their 
presence  when  practicable,  and  consequently  their  non- 
joinder in  such  a  case  is  a  defect  in  pleading.  The 
joinder  of  formal  parties  on  the  other  hand  is  entirely 
optional  with  the  plaintiff,  and  the  court  will  take  no 
account  of  their  omission.  How  then  are  we  to  take 
advantage  of  the  non-joinder  of  necessary  parties  and 
of  proper  jiarties  substantial  who  can  be  joined? 

In  the  first  place  it  should  be  stated  that  no  persons 
are  considered  joined  by  the  pleadings  as  parties  to  a 
suit  except  the  plaiptiffs  and  persons  against  whom  the 
bill  prays  for  process.  IMerely  naming  a  person  as 
defendant  does  not  make  him  a  party.^"^     Then  if  the 

by  the  heirs   against   the  admijiis-  See    also    United    States    v.    Agler, 

trator    for    exoneration    from    the  62  Fed.   824    (C.   C.   1894).     But   a 

mortgage.      Smith     v.    Wilson,    81  person  must  be  named  a  party  in 

Atl.  851   (X.  J.  E.  1911).  the   bill,   in   order   to   make   him   a 

14.  Story's  Eq.  PI.  (10th  ed.),  party,  though  process  be  served  on 
Sec.  44,  ctfi?!^':  Cooper 's  Eq.  PI.  16;  him.  Matterson  v.  Whaley,  19  R. 
Fawker  v.  Pratt,  1  P.  Wms.  593;  I.  648  (1896);  Chapman  v.  Pitts- 
Windsor  V.  Windsor,  2  Dick.  707;  burgh,  etc.,  E.  Co.,  18  W.  Va.  184 
Brasher  v.  VanCortlandt,  2  Johns.  (1881);  McCoy  v.  Allen,  16  W.  Va. 
Ch.  (X.  Y.)  24.5  (1816)  ;  Walker  v.  724  (1880).  Compare  West  Virgi- 
Hallett,  1  Ala.  379  (1840).  nia    Code,    Sec.    3857;    Bilmyer    v. 

But  it  seems  that  in  a  jurisdic-  Sherman,  23  W.  Va.  656  (1884).    If 

tion  where  it  is  usually  necessary  process  is  prayed  against  a  person, 

to  pray  process,  if  a  bill  does  not  he  is  a  party  defendant  though  his 

pray  process,  but  names  a  defend-  interest  is  not  apparent  from  the 

ant,    and    process    actually    issues  averments  of  the  bill.     Bonduraut 

and  is  served  on  him,  he  becomes  a  v.  Sibley,  37  Ala.  565  (1861-3).     A 

party  defendant.     .Jackson  v.  Put-  defendant  who  has  several  capaci- 

man,  60  So.  61   (Ala.  1912);  Sheri-  ties   is   not   a   party   as   to   any   of 

dan     v.     Cameron,     65     Mich.     680  those      capacities      except      those 

(1887);     Majors     v.     McNeilly.     7  named  against  him.     Carter  v.  In- 

Heisk.  (Tenn.)   294   (1872);  Jennes  graham,  43  Ala.  78  (1869). 
V.  Landes,  84  Fed.  73  (C.  C.  1897). 


PARTIES 


151 


want  of  proper  parties  substantial  or  necessary  parties, 
in  the  correct  sense  of  the  word  "parties,"  is  apparent 
on  tlie  face  of  the  bill,  it  may  be  taken  advantage  of  by 
cemurrer,^^  either  general  or  special;  and  if  the  defect 
is  not  apparent  on  the  face  of  the  bill,  it  may  be  taken 
advantage  of  by  plea,  or  in  a  general  answer. ^^  A  bill  is 
not  demurrable  which  states  good  grounds  for  not  joining 
those  whose  omission  is  assigned  as  a  ground  of  demur- 
rer." Consequently  where  the  joinder  of  proper  parties 
substantial  is  impracticable  on  the  ground  of  absence,  or 
because  they  are  unknown  or  too  numerous  ^^  these  facts 
should  be  alleged  in  the  bill,  otherwise  it  will  be  demur- 
rable. Where  a  demurrer  or  plea  is  filed  for  the  want  of 
necessary  parties,  it  must  appear  by  the  demurrer  or  be 
shown  by  the  plea  who  are  the  necessary  parties,  their 
names  being  stated  if  possible.  This  is  to  give  the 
plaintiff  a  better  bill  and  enable  him  to  amend  bj^  add- 


15.  See  Chapter  XI,  §  223,  post, 
p.  399,  for  cases  on  demurrers  for 
waut  of  parties. 

16.  See  under  Chapter  XII,  §  246, 
post,  p.  431;  Chapter  XIII,  §261, 
•pest,  p.  449. 

By  Federal  Equity  Rules  (of  1913) 
43  and  44,  where  the  defendant  by 
his  answers  suggests  that  the  bill 
is  defective  for  non-joinder,  the 
plaintiff  may  set  the  cause  for  ar- 
gument as  a  motion  upon  that  ob- 
jection only;  and  where  the  plain- 
tiff does  not  so  set  down  the  cause, 
but  proceeds  to  a  hearing  notwith- 
standing an  objection  for  want  of 
parties  taken  by  the  answer,  he  is 
rot  at  the  hearing,  if  the  defend- 
ant's objection  is  then  allowed,  en- 
titled as  of  course  to  an  order  to 
amend  the  bill  by  adding  parties, 
but  the  court  may  dismiss  the  bill 
or  allow  an  amendment  on  terms. 
If   the    defendant   first   objects    at 


the  hearing  to  a  defect  of  parties, 
not  having  objected  by  motion  or 
answer  specifying  the  parties  to 
whom  the  objection  applies,  the 
court  may  make  a  decree  saving 
the  rights  of  the  absent  parties. 

17.  Watts  V.  Gayle,  20  Ala.  817 
(1852);  Farmers'  &  Mechanics' 
Bank  v.  Polk,  1  Del.  Ch.  167 
(1821);  Baker  v.  Atkins,  67  Me. 
305    (1873). 

Failure  to  join  the  heirs  of  a  de- 
ceased party  in  interest  in  a  bill 
is  not  excused  by  the  mere  aver- 
ment that  the  party  died  in  an- 
other state,  and  that  since  his 
death  diligent  inquiry  has  been  in- 
stituted, without  ascertaining  who 
his  heirs  are,  but  that  they  are  all 
non-residents.  Westeott  v.  Minne- 
sota Min.  Co.,  23  Mich.  145  (1871). 

18.  See  §§58  and  59,  ante,  pp. 
91  et  seq. 


152 


EQUITY  PRACTICE 


ing  the  requisite  parties.^^  Where  a  demurrer  or  plea 
for  want  of  parties  is  allowed,  the  plaintiff  is  generally 
permitted  to  amend  his  bill  by  adding  the  necessary 
parties.-"  He  is  not  entitled  to  amend  as  a  matter  of 
course  however.  If  the  court  sees  that  the  plaintiff  can 
have  no  relief  under  any  circumstances  it  will  dismiss  the 
bill.2i 

AVhere  the  defect  is  vital  to  the  maintenance  of  the  bill, 
but  rarely  in  other  cases,  the  defect  may  be  taken  advan- 


19.  Chambers  v.  Wright,  52  Ala. 
445  (1875);  Thornton  v.  Xeal,  49 
Ala.  590  (1873);  Case  v.  Minot,  158 
Mass.  577,  33  N.  E.  700,  22  L.  K.  A. 
536  (1893);  Eobinson  v.  Dix,  18 
W.  Va.  528  (1881);  Dwight  v.  Cen- 
tral Vt.  R.  Co.,  9  Fed.  785  (C.  C. 
1881). 

But  the  plaintifiE  must  take  ad- 
vantage before  appeal  of  the  de- 
fendant 's  failure  to  specify  the 
missing  parties.  Mishler  v.  Finch, 
104  Md.   182    (1906). 

20.  See  Chapter  XI,  §  240,  post, 
p.  418;  Chapter  VI,  §  133,  post,  p. 
254;  Chapter  XVII,  §  304,  post,  p. 
520,  and  these  cases: 

Alabama.  Cruikshank  v.  Lutrell, 
67  Ala.  318   (1880). 

Delaware.  Wilmington  a'.  Ad- 
dicks,  8  Del.  Ch.  310   (1899). 

Florida.  Price  v.  Stratton,  45 
Fla.  535   (1903),  cross  bill. 

Illinois.  Stelzick  v.  Weidel,  27 
111.   App.    177    (1888). 

Maine.  Hussey  v.  Dole,  24  Me. 
20    (1S44). 

Mississippi.  Rowzee  v.  Pierce, 
75  Miss.  846,  65  Am.  St.  Rep.  625, 
40  L.  R.  A.  402  (1898);  Whitney  v. 
Cotton,  53  Miss.  6S9  (1876). 

New  Hampshire.  Perham  v. 
Haverhill,  etc.,  Co.,  64  N.  H.  2 
(1885). 

New  Jersey.     Hoppoek  v.  Craig, 


21  Atl.  624  (X.  J.  E.  1891);  Me- 
lick  V.  Melick,  17  X.  J.  E.  156 
(1864). 

Virginia.  Holland  v.  Trotter,  22 
Gratt.   (Va.)   136  (1872). 

United  States.  Hubbard  v.  ^Irn- 
hattan  Trust  Co.,  87  Fed.  51  (C.  C. 
1898). 

In  these  cases  the  defect  of  non- 
joinder was  permitted  to  be  cured 
by  amendment  or  supplemental  bill. 

21.  McGlathery  v.  Richardson, 
129  Ala.  653  (1900);  Marston  v. 
Humphrey,  24  Me.  513  (1845); 
Wescott  V.  Minnesota,  etc.,  Co.,  23 
Mich.  145  (1871);  Mickles  v.  Roch- 
ester Bank,  11  Paige  (N.  Y.)  118 
1844). 

But  where  such  dismissal  is  on 
demurrer,  it  should  be  without 
prejudice  to  the  plaintiff's  right  to 
bring  a  new  action.  Goodman  v. 
Xiblack,  102  U.  S.  556,  26  L.  ed. 
229   (1880). 

So,  also,  the  bill  will  be  dismissed 
if  the  plaintiff  refuses  to  amend. 
Goodman  v.  Benham,  16  Ala.  625 
(1849);  Howell  v.  Foster,  122  711. 
276  (1887);  Watson  v.  Lion  Brew 
ing  Assn.,  61  Mich.  595  (1886), 
semble ;  or  where  the  omission  was 
through  bad  faith.  Van  Epps  v. 
A"an  Deusen,  4  Paige  (X.  Y.)  64, 
25  Am.  Dec.  516  (1833).  See  also 
Chapter  XI,  §  240,  pest,  p.  418. 


PARTIES 


153 


tage  of  at  the  hearing,  on  motion,^-  but  the  court  may 
permit  the  necessary  parties  to  be  added  without  a  sup- 
plemental bill.-^  If  not  taken  advantage  of  or  noticed 
by  the  parties  before  or  at  the  hearing,  the  court  itself 
will  take  notice  of  the  want  of  necessary  parties  -^  and 
may  order  the  case  to  stand  over  on  terms  with  liberty  to 
amend  by  adding  necessary  parties,  or  the  court  may 
refuse  the  decree  and  dismiss  the  bill.^^  But  if  the  bill 
is  dismissed,  it  should  be  without  prejudice.^*^     If,  liow- 


22.  Alabama.  Bibb  v.  Hawley, 
59  Ala.  403   (1877). 

Florida.  Robinson  v.  Howe,  35 
Fla.  73   (1895). 

Maine.  Miller  v.  Whittier,  33 
Me.   521    (1851). 

New  Jersey.  Winans  v.  Graves, 
43  N.  J.  E.  263  (1887);  Cutler  v. 
Tuttle,  19  N.  J.  E.  549  (1868); 
Van  Doren  v.  Robinson,  16  N.  J.  E. 
256   (1863). 

Pennsylvania.  Hartley  v.  Lang- 
l-iamp,  90  Atl.  402    (Pa.   1913). 

Vermont.  Smith  v.  Bartholo- 
mew, 42  Vt.  356  (1869);  Page  v. 
Olcott,  28  Vt.  465    (1856). 

West  Virginia.  Burlew  v.  Quar- 
rier,  16  W.  Va.  108  (1880);  Hill 
V.  Proctor,  10  W.  Va.  59   (1877). 

United  States.  Adams  v.  How- 
ard, 22  Fed.  656  (C.  C.  1884); 
Florence  S.  M.  Co.  v.  Singer  Mfg. 
Co.,  F.  C.  4884,  8  Blatchf.  113 
(C.  C.  1870). 

A  defect  of  parties  should  not 
be  raised  on  motion  for  prelimi- 
nary injunction.  Snelling  v.  Rich- 
ard, 166  Fed.  635  (C.  C.  1909). 

23.  See  the  cases  cited  in  note 
22,  ante. 

24.  Alabama.  Prout  v.  Hoge,  57 
Ala.  28  (1876). 

Illinois.  Prentice  v.  Kimball,  19 
HI.  320  (1857). 

Maine.     Laughton  v.  Harden,  68 


Me.  208  (1878);  Morse  v.  Machias 
Water  Power  Co.,  42  Me.  119 
(1856). 

New  Jersey.  Kempton  v.  Bar- 
tine,  59  N.  J.  E.  149  (1899),  60 
N.  J.  E.  411   (1900). 

Virginia.  Clayton  v.  Henley,  32 
Gratt.  65  (1879). 

West  Virginia.  Morgan  v. 
Blatehley,  33  W.  Va.  155  (1887). 

United  States.  Alexander  v. 
Horner,  F.  C.  169,  1  McCrary  634 
(C.  C.  1879). 

But  the  court  will  not  interfere 
where  the  party  omitted  was  not 
necessary.  Eustice  v.  Holmes,  52 
Miss.  305  (1876);  Brooks  v.  Fowle, 
14  N.  H.  248  (1843). 

25.  Pierce  v.  Faunee,  47  Me.  507 
(1859), — here  the  bill  had  substan- 
tive objections. 

Wescott  V.  Minnesota  Mining 
Co.,  23  Mich.  145  (1871),— here  the 
proofs  on  the  hearing  failed  to 
disclose  a  strong  case.  And  see 
note  16,  <ante,  p.  151. 

26.  Goodman  v.  Niblack,  102  U. 
S.  556,  26  L.  ed.  229  (1880),  here 
the  dismissal  was  on  demurrer  but 
the  same  principle  would  seem  to 
be  obtained  where  the  point  is 
raised  at  the  hearing  or  by  the 
court.  See  also  Flournoy  v.  Har- 
per, 81  Ala.  494  (1886);  Andrews 
V.  Hobson,  23  Ala.  219  (1853). 


154 


EQUITY  PRACTICE 


ever,  a  decree  is  made  regardless  of  a  defect  of  necessary 
parties,  it  may  be  reversed  on  rehearing  or  on  appeal, 
or  if  not  reversed  it  will  bind  none  but  the  parties  to  the 
suit  and  those  claiming  under  them ;  ^^  but  the  absence  of 
parties  other  than  necessary  parties  will  not  be  consid- 
ered for  the  first  time  on  appeal.-^ 

The  want  of  a  party  may  sometimes  be  cured  at  the 
hearing  by  the  plaintiff's  waiving  the  relief  he  would  be 
entitled  to  against  the  absent  party,  or  by  agreeing  to 
give  full  effect  to  the  utmost  rights  such  party  could  have 
claimed,  but  this  cannot  be  done  to  the  prejudice  of  the 
rights  of  others.^*^  Defects  as  to  parties  may  also  be 
waived  by  failing  to  take  the  objection  in  proper  season, 
or  by  consent  of  the  omitted  party.^*^ 


27.  Florida,  etc.,  Co.  v.  Ander- 
son, 50  Fla,  501  (1905);  Robinson 
V.  Howe,  35  Fla.  73,  17  So.  368 
(1895);  Morse  v.  Machias  Co.,  42 
Me.  119  (1856);  Clayton. v.  Henley, 
32  Gratt.  65  (1879);  Hitchcox  v. 
Hitehcox,  39  W.  Va.  607  (1894); 
Coiron  v.  Millaudon,  19  How.  113, 
15  L.  ed.  575  (1856). 

28.  Alabama.  Anderson  v.  Har- 
ris, 12  Ala.  580  (1847). 

Florida.  Taylor  v.  Brown,  32 
Fla.   334   (1893). 

Illinois.  Conwell  v.  Watkins,  71 
111.  488  (1874);  Burger  v.  Potter, 
32  111.  66   (1863). 

Maryland.  Bridges  v.  McKenna, 
14  Md.  258   (1859). 

Michigan.  Snook  v.  Pearsall,  95 
Mich.   534    (1893). 

Mississippi.  Truly  v.  Lane,  7  S. 
&  M.  (Miss.)  325,  45  Am.  Dec.  496 
(1846). 

Pennsylvania.  Brown  v.  Gray, 
2  Kulp  (Penn.)  136  (1882). 

Tennessee.  Reeves  v.  Dough- 
erty, 7  Yerg.  (Tenn.)  222,  27  Am. 
Dee.  496  (18.34). 


Virginia.  Clayton  v.  Henley,  32 
Gratt.   (Va.)   65   (1879). 

United  States.  McBurney  v. 
Carson,  99  U.  S.  567,  25  L.  ed.  378 
(1879)  ;  Mechanics'  Bank  v.  Sexton, 

1  Pet.  299,  7  L.  ed.  152   (1828). 

29.  Danicll's  Ch.  Pr.  (6th  Am. 
ed.)  293,  citing:  Pawlet  v.  Bishop 
of  Lincoln,  2  Atk.  296;  Dart  v. 
Palmer,  1  Barb.  Ch.  92  (X.  Y. 
1845);  Harvey  v.  Cooke,  4  Russ. 
35;  Walker  v.  Jefferies,  1  Hare 
296,  341,  356. 

30.  New  Jersey.  Hendrickson  v. 
Wallace,  31  N.  J.  Eq.  604  (1879), 
misjoinder   of   plaintiffs. 

Pennsylvania.      Brown    v.    Gray, 

2  Kulp  (Pa.)  136  (1882). 
Tennessee.    Reeves  v.  Dougherty, 

15  Tenn.  222,  27  Am.  Dec.  496 
(1834). 

Vermont.  Page  v.  Oleott,  28  Vt. 
465   (1856). 

United  States.  Livingston  v. 
Woodworth,  15  How.  546,  14  L.  ed. 
889   (1853). 

And  see  those  cases  in  notes  24 
and  28,  ante,  where  defects  of  par- 


PARTIES 


155 


New  parties  either  plaintiff  or  defendant  may  be 
admitted  in  an  equity  proceeding,  as  their  interests  arise, 
on  their  own  petitions  of  intervention,  or  by  amendment 
or  supplemental  bill.^^  The  position  of  parties  as  plaintiff 
or  defendant  is  comparatively  unimportant  in  equity,  and 
will  be  altered  by  the  court,  on  motion  or  petition,  as 
occasion  may  arise,  or  may  be  altered  in  effect  in  the 
decree  without  the  necessity  of  making  a  formal  change 
in  the  record."^ 

§  77.  — Misjoinder.  Where  the  defect  in  the  pleading 
consists  in  the  joinder  of  improper  parties  defendant 
such  as  persons  having  no  interest,  or  mere  agents  or 
witnesses,  if  the  defect  is  apparent  on  the  face  of  the 
bill  it  may  be  taken  advantage  of  by  demurrer  by  the 
party  improperly  joined ;  ^"  and  where  the  defect  consists 


ties  other  than  necessary  parties 
were  held  not  to  be  available  at 
the  hearing  or  on  appeal. 

A  defective  bill  in  equity,  ren- 
dered bad  on  demurrer  by  failure 
to  name  therein  as  defendant  a 
necessary  party,  is  not  cured  by  an 
order  dismissing  the  suit  as  to  such 
party;  he  in  no  way  being  a  party 
thereto.  Oneal  v.  Stimson,  61  W. 
Va.  551  (1907). 

A  demurrer  for  lack  of  parties 
will  be  disregarded  when  the  an- 
s^ror  shows  that  all  interested  par- 
ties are  before  the  court.  Craft  v- 
E-ussell,  67  Ala.  9  (1880). 

31.  See,  below.  Chapter  X,  §§ 
211-212,  imst,  pp.  385  et  seq.;  Chap- 
ter VI,  §  141,  post,  p.  269,  and 
§  133,  post,  p.  254;  and  Chapter 
XVII,  §  304,  iJost,  p.  520.  See  also 
Federal  Equity  Eule  (1913)  No.  37. 

32.  Alabama.  Parkman  v.  Ei- 
cardi,  34  Ala.  393  (1859). 

Illinois.  Prindeville  v.  Curran, 
156  111.  App.  298   (1910). 


Maryland.  Farmers',  etc.,  Bank 
v.  Waymann,  5  Gill  (Md.)  336 
(1847). 

New  Hampshire.  Peterborough 
Sav.  Bank  v.  Hartshorn,  67  N.  H 
156   (1891). 

New  Jersey.  Thompson  v 
Fisher,  33  N.  J.  E.  480   (1881). 

Vermont.  West  v.  Bank  of  Rut 
land,  19  Vt.  403  (1847). 

West  Virginia.  Sadler  v.  Tay 
lor,  49  W.  A^a.  104  (1901);  Burlew 
V.  Quarrier,  16  W.  Va.  108  (1880) 

United  States.  Lalance,  etc.,  Co 
V.  Habermau,  etc.,  Co.,  93  Fed.  197 
(C.  C.  1899);  Campbell  v.  James 
2  Fed.  338   (C.  C.  1881). 

A  co-plaintiff  who  refuses  to 
prosecute  the  action  after  it  is 
begun  may  be  made  a  defendant. 
McConaughey  v.  Bennett's  Exors., 
50  W.  Va.  172  (1901). 

33.  Alabama.  Toulmin  v.  Ham- 
ilton, 7  Ala.  362  (1845). 

Florida.  Taylor  v.  Matthews,  53 
Fla.   776   (1907). 


156 


EQUITY  PRACTICE 


in  the  joinder  of  improper  parties  plaintiff,  and  is  appar- 
ent on  the  face  of  the  bill,  any  defendant  may  demur.^^ 
If  it  is  not  apparent  on  the  face  of  the  bill  the  objection 
may  be  taken  by  way  of  a  plea,^^  or  by  answer  ^"^  or  in 
some  cases  it  may  be  taken  at  the  hearing.^^  But  the 
best  practice  is  to  take  advantage  of  it  by  way  of  demur- 
rer, when  it  is  apparent  on  the  face  of  the  bill,  or  if  not 
apparent,  then  by  plea  or  answer,  since  the  court  will 
make  a  decree  at  the  hearing,  notwithstanding  the  defects 
of  parties,  where  it  can  be  done  without  prejudice  to  the 
rights  of  any  one.^^ 

But  it  is  to  be  noted  that  the  defect  of  misjoinder  of  a 
party  defendant  can  only  be  taken  advantage  of  by  the 
l^arty  improperly  joined,  and  of  misjoinder  of  a  plaintiff 
only  by  a  defendant  as  to  whom  the  plaintiff  is  an 
improper   party;  "^^    and    that    the   mere   misjoinder    of 


Illinois.  Peoria,  etc.,  R.  Co.  v. 
Pixley,  15  111.  App.  83  (1884). 

Michigan.  Emerson  v.  Walker 
Township,   63   Mich.   483    (1886). 

Mississippi.  Hopson  v.  Harrall, 
56  Miss.  202  (1878);  Harding  v. 
Cobb,  47  Miss.  599  (1873). 

New  Jersey.  McCullogh  v.  Ward, 
76  X.  ,T.  E.  454  (1909). 

Vermont.  Eureka  Marble,  etc., 
Co.  V.  Windsor  Mfg.  Co.,  47  Vt. 
430   (1874). 

West  Virginia.  Preston  v.  West, 
55  W.  Va.  391  (1904);  Tavenner  v. 
Barrett,  21  W.  Va.  656  (1883);  Mc- 
Clanahan  v.  Davis,  8  How.  170,  12 
L.  ed.  1033   (1850). 

34.  Lehman  v.  Greenhut,  88  Ala. 
478  (1889),  semble;  Baltimore  Trust 
Co.  V.  George  Creek,  etc.,  Co.,  85  Atl. 
949  (Md.  1913),  semhle;  Barstow  v. 
Smith,  Walk.  Ch.  (Mich.)  394 
(1844);  .Johnson  v.  Vail,  14  N.  J. 
E.  423  (1862);  Hubbard  v.  Manhat- 
ton  Trust  Co.,  87  Fed.  51,  30  C.  C. 
A.  520   (1898). 


35.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  237;  and  see  dicta  in  the  cases 
cited  in  notes  33  and  34,  ante. 

36.  Barr  v.  Clayton,  29  W.  Va. 
256   (1886),  misjoinder  of  plaintiff. 

37.  Crooker  v.  Rogers,  58  Me. 
339  (1870);  Haskell  v.  Hilton,  30 
Me.  419  (1849),  misjoinder  of 
plaintiff;  Baltimore  Trust  Co.  v. 
George's  Creek,  etc.,  Co.,  85  Atl. 
949    (Md.    1913). 

38.  Accordingly  it  was  held  that 
objection  at  the  hearing  to  mis- 
joinder of  plaintiffs  came  too  late, 
in  Hendrickson  v.  Wallace,  31  N. 
J.  E.  604  (1879)  and  Cunningham 
V.  Blanchard,  S3  Atl.  469  (Vt. 
1912). 

39.  Alabama.  Boiling  v.  Van- 
diver,  91  Ala.  375  (1890). 

Florida.  Taylor  v.  Matthews,  53 
Fla.  776  (1907);  Wherry  v.  Lati- 
mer, 60  So.  563  (1913). 

Illinois.  Peoria,  etc.,  R.  Co.  v. 
Pixley,  15  HI.  App.  283   (1884). 

Maine.    Kennebec,  etc.,  R.  Co.  v. 


PARTIES 


157 


parties,  plaintiff  or  defendant,  in  a  bill  in  equity  is  not 
sufficient  cause  for  dismissal  of  the  bill.^"  Too  few  parties 
may  be  fatal  to  a  bill  but  never  too  many,  and  if  from 
over-caution  too  many  are  joined,  the  mistake  is  easily 
remedied  at  any  stage  of  the  proceedings. 

If  the  plaintiff  discontinues  as  to  a  partj^,  however,  he 
is  liable  for  costs  to  the  party  thus  improperly  joined.^^ 


Portland,  etc.,  R.  Co.,  54  Me.  173, 
183  (1866). 

Michigan.  Bigelow  v.  Sanford, 
98  Mich.  657   (1894). 

Mississippi.  Mitchener  v.  Rob- 
ins, 73  Miss.  383  (1895),  semble. 

New  Jersey.  McCuUogh  v. 
Ward,  76  N.  J.  E.  454  (1909);  Her- 
man V.  Board,  73  N.  J.  E.  415,  aff. 
71  N.  J.  E.  541   (1906-7). 

Tennessee.  Payne  v.  Berry,  3 
Tenn.  Ch.  154   (1876). 

Vermont.  Hastings  v.  Belden, 
55  Vt.  273  (1882). 

In  Taylor  v.  Matthews,  53  Fla. 
776  (1907),  the  court  distinguishes 
between  joint  demurrers  and  joint 
and  several  demurrers,  stating  that 
a  joint  and  several  demurrer  on 
the  ground  of  misjoinder  of  one  of 
the  defendants  demurring  may  be 
allowed  as  to  him.  In  the  case,  the 
demurrer  was  joint,  but  the  court 
in  its  discretion  dismissed  the  bill 
as  to  the  improper  party  and 
divided  the  costs  between  the 
other  two.  In  Simpson  v.  Bockius, 
77  N.  J.  E.  339  (1910),  the  court 
held  that  under  a  joint  and  several 
demurrer  only  the  person  wrong- 
fully joined  may  claim  misjoinder. 


40.  Delaware.  Reynold  v.  Herd- 
man,  2  Del.  Ch.  34  (1837). 

Florida.  Taylor  v.  Matthews,  53 
Fla.  776  (1907). 

Illinois.  Stelzick  v.  Weidel,  27 
HI.  App.  177  (1888). 

Maine.  Brown  v.  Lawton,  87 
Me.  83   (1894). 

Michigan.  Reed  v.  Wessil,  7 
Mich.   139    (1859). 

Pennsylvania.  Blankenburg  v. 
Black,  200  Pa.  629  (1901). 

Tennessee.  Lillard  v.  Mitchell, 
37  S.  W.  702  (Tenn.  Ch.  App. 
1896). 

West  Virginia.  McConaughey  v. 
Bennett's  Exors.,  50  W.  Va.  172 
(1901). 

United  States.  Victor,  etc.,  Ma- 
chine Co.  V.  American  Graphophone 
Co.,  118  Fed.  50  (C.  C.  1902);  Hub- 
bard V.  Manhattan  Trust  Co.,  87 
Fed.  51,  30  C.  C.  A.  520  (1898). 

Where  the  misjoined  person  is 
the  sole  party  plaintiff  or  defend- 
ant, the  bill  may  of  course  be  dis- 
missed. See  for  instance  Balti- 
more Trust  Co.  V.  George 's  Creek, 
etc.,  Co.,  119  Md.  421   (1913). 

41.  Hayward  v.  Kinney,  84  Mich. 
591   (1891). 


CHAPTER  V 

ORIGINAL  BILLS 

§  80.  Classification.  Having  ascertained  who  are  pro- 
per parties  to  join  as  plaintiffs  and  defendants  in  the 
cause,  the  pleader  is  now  ready  to  draw  his  complaint 
and  begin  his  suit  in  equity  for  relief.  Proceedings  in 
equity  are  begun  by  a  written  statement  or  petition  known 
as  a  bill  in  chancery  or  bill  in  equity.  When  made  by  the 
attorney  general  it  is  known  as  an  information.  Bills 
may  be  first  divided  into  two  general  classes,  original 
bills  and  bills  not  original.  An  original  bill,  as  the  name 
implies,  is  one  which  begins  a  suit  in  equity.  Original 
bills  may  in  turn  be  sub-divided  into  those  which  pray 
for  relief  and  those  which  do  not  'praj  for  relief. 

§  81.  Original  bills  not  praying  for  relief.  This  class 
includes  bills  of  discovery,  bills  to  perpetuate  the  testi- 
mony of  witnesses  and  bills  to  examine  witnesses  de  bene 
esse.  The  last  two  classes,  owing  to  the  introduction  of 
simpler  and  more  effectual  statutory  methods  of  obtain- 
ing evidence,  are  obsolete.  Bills  of  discovery,  whether 
simply  for  discovery  or  for  discovery  and  consequent 
relief,  have  in  practice  been  almost  entirely  superceded 
by  simpler  methods,  although  the  power  to  entertain  them 
still  exists  in  all  of  the  law  and  equity  states.^  It  is  not 
therefore  deemed  advisable  to  devote  any  extended  por- 
tion of  the  text  here  to  the  discussion  of  how  these  three 
classes  of  original  bills  not  praying  for  relief  should  be 
framed,  but  a  brief  summan^  of  the  principal  character- 
istics of  bills  of  discovery  has  already  been  given.^ 

1.  See  Chapter  IT,  §  32,  ante,  p.  2.  The  character  of  a  bill  for  dis- 

34.  covery   is   discussed   in    §  33,  ante, 

158 


ORIGINAL  BILLS 


159 


§  82.  Original  bills  praying  for  relief.  These  are  of  two 
kinds,  the  commou  bill  of  complaint,  and  bills  of  inter- 
pleader.^ First  then  as  to  the  bill  of  complaint  or  com- 
mon bill  in  equity,  which  in  its  formal  frame  will  serve 
as  a  model  for  all  the  other  classes  of  bills. 

§  83.  The  common  bill — How  framed.  An  original  bill 
of  comjjlaint  praying  for  relief,  according  to  the  strict 
rules  of  ancient  chancery  pleading  contained  nine  parts: 
the  address  to  the  proper  court;  the  introductory  part, 
containing  the  names  and  residences  of  the  parties;  the 
stating   part;    the    confederacy    clause;'*    the    charging 


p.  37.  The  cases  there  cited  indi- 
cate  the   necessary   allegations. 

The  answer  to  a  pure  bill  of 
discovery  must  be  under  oath. 
Consequently,  the  bill  must  not 
waive    such    answer. 

Massachusetts.  Badger  v.  Me- 
Namara,    123    Mass.    117    (1877). 

Michigan.  Torrent  v.  Eogers, 
39  Mich.  85   (1878). 

New  Jersey.  Somerset  Bank  v. 
A^eghte,  42  N.  J.  E.  39   (1886). 

Rhode  Island.  Starkweather  v. 
Williams,  21  E.  I.  55   (1898). 

Tennessee.  Markham  v.  Town- 
send,  2   Tenn.  Ch.   713    (1877). 

United  States.  Tillinghast  v. 
Chace,   121  Fed.   435    (C.   C.   1903). 

But  a  bill  for  discovery  and  re- 
lief may  waive  the  oath  to  the 
answer.  Compress  Co.  v.  Cotton 
Co.,  157  Ala.  32  (1908);  Manley 
V.  Nickle,  55  N.  J.  E.  563  (1897); 
Constr.  Co.  v.  E.  E.  Co.,  145  Fed. 
981    (1906). 

But  no  discovery  can  be  had  un- 
der a  general  prayer,  where  the 
bill  waives  answer  under  oath  and 
has  no  interrogatories.  Calahan  v. 
Holland  Cook  Co.,  201  Fed.  607 
(D.   C.   1913). 

A   pure   bill   for   discovery   need 


not  be  verified.  Buckner  v.  Fer- 
guson, 44  Miss.  677   (1870). 

Except  under  the  statutes  or 
rules  of  some  of  the  states.  See 
Chancery  Eules  5  of  Maine,  and 
7  of  Vermont. 

A  bill  asking  both  for  discovery 
and  relief  is  subject  to  the  same 
rules  regarding  verification  as  any 
other  bill  for  relief.  Dinsmore  v. 
Crossman,  53  Me.  44  (1866);  Liv- 
ingston V.  Livingston,  4  John.  Ch. 
(N.  Y.)  294  (1820);  Findlay  v. 
Hinde,  1  Pet.  241,  7  L.  ed.  128 
(1828). 

3.  In  ancient  chancery  practice 
there  was  a  third  kind,  namely: 
bills  of  certiorari.  Story's  Eq.  PI. 
(10th  ed.)  §  18.  Their  purpose  was 
to  remove  a  cause  from  an  in- 
ferior court  of  equity  to  a  higher 
court.  There  are  but  few  instances 
of  their  use  in  the  United  States 
and  there  is  no  necessity  for  them 
in  modern  equity  practice. 

4.  An  averment  that  the  de- 
fendants named  were  confederat- 
ing with  other  persons  unknown 
to  the  plaintiff  to  defraud  him  of 
his  rights,  accompanied  with  a 
prayer  for  leave  to  join  such  per- 
sons    when     they    should    be     dis- 


160 


EQUITY  PRACTICE 


part;  ^  the  jurisdiction  clause; ''  tlie  interrogating  part;  ^ 


covered.  The  object  was  said  to 
be  to  enable  the  plaintiff  to  join 
new  parties  when  necessary;  but 
this  was  possible  without  any  such 
averment,  which  consequently  was 
unnecessary  and  absurd.  See  Mar- 
shall V.  Rench,  3  Del.  Ch.  239,  250 
(1868). 

The  confederacy  clause  never 
was  an  essential  part  to  a  bill.  1 
Daniell's  Ch.  Pr.  (6th  Am.  ed.) 
483,  Mitford's  Eq.  PI.  42.  See  also 
Stone  V.  Anderson,  26  N.  H.  506 
(1853). 

It  is  dispensable  by  statute  or 
rule  of  court  in  many  jurisdictions 
Alabama  Code,  Sec.  3094;  Dela 
ware,  Eq.  Rule  21;  Florida,  Eq 
Rule  18;  Maine,  Eq.  Rule  4;  Mary 
land  Code,  Sec.  146;  Maryland,  Eq 
Rule  15;  Mississippi  Code,  Sec 
578;  New  Jersey,  Eq.  Rule  208; 
Pennsylvania,  Eq.  Rule  17;  Rhode 
Island,  Eq.  Rule  7;  Tennessee 
Code,  Sec.  6124;  Vermont,  Eq. 
Rule  4;  and  United  States,  Eq. 
Rule  25. 

It  is  used  to  some  extent  in 
some  of  the  jurisdictions,  e.  g.. 
New  Jersey,  but  is  generally  ob- 
solescent. 

5.  This  was  a  statement  of  the 
anticipated  defences  to  the  bill 
and  the  plaintiff's  answers  to  them. 
As  a  separate  part  of  the  bill  it 
was  recognized  as  really  unneces- 
sary. Marshall  v.  Rench,  3  Del. 
Ch.  239,  250  (1868).  It  is  dis- 
pensable by  statute  or  rule  of  court 
in  many  jurisdictions.  Alabama, 
Code,  Sec.  3094;  Florida,  Eq.  Rule 
18;  Maine,  Eq.  Rule  4;  Rhode 
Island,  Eq.  Rule  7;  Vermont,  Eq. 
Rule  4;  and  see  Federal  Equity 
Rule  25. 

The  usual  modern  practice  is  to 


include  the  statements  which  for- 
merly constituted  the  charging 
part  with  the  stating  part  of  the 
bill. 

Alabama.  McDonnell  v.  Finch, 
131  Ala.  85,  89   (1901). 

Delaware.     Eq.  Rule  21. 

Florida.     Eq.  Rule  18; 

Pennsylvania.     Eq.   Rule    17. 

Rhode  Island.     Eq.  Rule  7. 

Vermont.     Eq.  Rule  4. 

But  in  New  Jersey  and  a  few 
other  jurisdictions,  the  ancient 
charging  part  is  still  used.  Stev- 
enson V.  Morgan,  64  N.  J.  E.  219 
(1902). 

6.  This  was  an  averment  that 
the  case  is  one  for  the  cognizance 
of  a  court  of  chancery,  and  that 
the  plaintiff  has  no  adequate  rem- 
edy at  law.  It  is  not  now  neces- 
sary, and  never  was.  If  the  bill 
states  matters  of  equitable  juris- 
diction, the  court  will  sustain  it 
though  the  formal  allegation  of 
inadequacy  of  law  be  omitted;  on 
the  other  hand,  a  bill  which  con- 
tains no  sufficient  specific  allega- 
tions of  equitable  matters  cannot 
be  sustained  merely  by  reason  of 
containing  a  general  jurisdiction 
clause.  See  §  91,  post,  this  chap- 
ter, p.  173.  It  is  dispensable  by 
statute  or  rule  of  court  in  many 
jurisdictions.  Alabama,  Code,  Sec. 
3094;  Delaware,  Eq.  Rule  21; 
Florida,  Eq.  Rule  18;  Maine,  Eq. 
Rule  4;  Maryland,  Code,  Sec.  146, 
and  Eq.  Rule  15;  Mississipp',  Code, 
Sec.  578;  Pennsylvania,  Eq.  Rule 
17;  Rhode  Island,  Eq.  Rule  7;  Ten- 
nessee, Code,  Sec.  6124;  Vermont, 
Eq.  Rule  4;  and  see  Federal 
Equity  Rule  25. 

7.  The  interrogating  part  origi- 
nally  comprised   simply   a   general 


ORIGINAL  BILLS 


161 


the  prayer  for  relief;  and  the  prayer  for  process.    Out  of 


prayer  that  the  court  require  the 
defendant  to  appear  in  court  and 
fully  answer  every  allegation  of 
the  bill.  Such  a  prayer  is  ob- 
viously necessary  to  the  funda- 
mental conception  of  a  bill  in 
equity.  To  this  general  interroga- 
tory was  added  in  later  chancery 
practice  special  interrogatories  ad- 
dressed to  the  defendant  in  order 
to  elicit  direct  answers  to  allega- 
tions in  the  stating  part  of  the  bill 
or  to  charges  in  the  charging  part, 
which  otherwise  the  defendant 
might  evade  answering.  The  spe- 
cial interrogatories  were  inserted 
as  a  practical  precaution.  They 
were  theoretically  unnecessary, 
since  the  general  interrogatory  has 
always  been  sufficient  to  entitle 
the  plaintiff  to  a  full  disclosure. 
Ames  v.  King,  9  Allen  (Mass.)  258 
(1864);  Miles  v.  Miles,  27  N.  H. 
440  (1853);  Vermont,  Chancery 
Bule  4;  McCloskey  v.  Barr,  40  Fed. 
559  (1889);  U.  S.  v.  McLaughlin, 
24  Fed.  823  (1885). 

The  interrogating  part,  and  par- 
ticularly the  special  interrogato- 
ries, had  a  vital  importance  when 
answers  were  invariably  under 
oath,  since  sworn  evidence  from 
the  defendant  was  often  thereby 
secured  to  assist  the  plaintiff's 
cause.  But  the  use  of  either  por- 
tion of  the  interrogating  part  of 
tlie  bill  has  always  been  discre- 
tionary with  the  pleader.  Thorn- 
ton V.  Sheffield,  etc.,  R.  Co.,  84 
Ala.  109  (1887);  Marshall  v.  Rench, 
3  Del.  Ch.  239  (1868);  Delaware, 
Eq.  Rule  21;  Mass.  Rev.  Laws,  Ch. 
159,  Sec.  12;  Penn.  Eq.  Rule  17. 
Contra,  Shed  v.  Garfield,  5  Vt.  39 
(1833). 

In  many  jurisdictions,  the  gen- 
Whitehouse  E.  P.  Vol.  I — 11 


eral  interrogatory  has  become  but 
a  formal  part,  or  is  not  used  at  all, 
while  special  interrogatories  are 
seldom  used.  This  is  because  of 
the  almost  universal  use  of  un- 
sworn answers.  Such  an  answer 
has  no  effect  as  evidence,  and  in 
some  jurisdictions  cannot  be  ex- 
cepted to  as  insufficient.  See  Chap- 
ter XIII,  post,  page  447. 

In  other  jurisdictions,  however, 
under  express  provisions  of  stat- 
utes or  rules,  not  only  are  special 
interrogatories  in  the  bill  still  in 
frequent  use  in  the  ancient  man- 
ner in  anticipation  of  a  sworn  an- 
swer, but  special  interrogatories 
may  be  appended  to  the  bill,  or 
filed  during  the  pendency  of  the 
cause,  sometimes  by  the  defendant 
as  well  as  by  the  plaintiff,  calling 
upon  the  opposite  party  to  the  suit 
to  give  information  under  oath, 
even  where  oath  to  the  answer  to 
the  bill  has  been  waived. 

The  following  is  an  analysis  of 
the  practice  in  various  jurisdic- 
tions in  respect  to  interrogatories: 

Alabama.  Interrogatories  in  the 
bill  are  to  be  separately  numbered, 
and  preceded  by  a  formal  introduc- 
tion. Chancery  Rules  9,  13.  Inter- 
rogatories may  accompany  the  bill 
although  oath  to  the  answer  is 
waived.  Russell  v.  Garrett,  75 
Ala.  348  (1883).  But  the  plaintiff 
cannot  waive  the  oath  to  the  an- 
swer, and  file  interrogatories  by 
amendment  after  the  answer  has 
been  made.  McCaw  v.  Barker,  115 
Ala.  543  (1896).  If  the  defendant 
objects  to  the  interrogatories,  he 
should  not  demur  to  them,  but 
should  move  to  strike  out  the 
objectionable  interrogatories,  or 
should    demur    to    the    portion    of 


162 


EQUITY  PRACTICE 


these  nine  parts  formerly  required,  either  by  statutes  or 


the  bill  on  which  they  are  based, 
or  should  decline  to  answer.  Char- 
davoyne  v.  Galbraith,  81  Ala.  521 
(1886).  By  Sections  3134  to  3138, 
Code  of  1907,  the  defendant  may 
file  interrogatories  of  the  plaintiff, 
and  the  plaintiff  may  file  interroga- 
tories of  the  defendant  after  issue; 
but  these  provisions  are  rarely 
used  in  practice.  By  Chancery 
Eules  11,  12,  the  plaintiff  is  re- 
quired to  append  a  note  in  writing 
at  the  bottom  of  his  bill,  as  a  part 
of  the  bill,  pointing  out  the  par- 
ticular statements  or  interrogato- 
ries he  wishes  each  defendant  to 
answer.  The  answer  need  not  go 
beyond  this  requirement.  Sprague 
V.  Tyson,  44  Ala.  338  (1870).  This 
footnote  may  be  informal.  Paige 
V.  Broadfoot,  100  Ala.  610  (1892); 
McKenzie  v.  Baldridge,  49  Ala.  564 
(1873).  But  its  omission  is  demur- 
rable. Winter  v.  Quarlas,  43  Ala. 
692  (1869).  A  decree  pro  confesso 
on  a  bill  which  omitted  the  foot- 
note is  improper.  O  'Neal  v.  Eob- 
inson,  45  Ala.  526  (1871).  The 
footnote  may  be  added  by  amend- 
ment if  omitted  in  the  original 
bill.  Alabama,  etc.,  Co.  v.  Jones, 
62  Ala.  550  (1878);  Martin  v. 
Hewitt,  44  Ala.  418    (1870). 

Delaware.  Although  the  bill  is 
not  demurrable  if  it  omits  inter- 
rogatories, interrogatories  may  be 
appended  as  part  of  the  bill,  con- 
veniently divided  and  numbered 
consecutively,  with  the  particular 
interrogatories  to  be  answered  by 
each  defendant  specified.  The  in- 
terrogatories may  be  omitted  in 
bills  other  than  for  discovery,  but 
in  such  case  the  answer  cannot 
be  excepted  to  for  insufficiency. 
Equity  Rules  21,  22,  23.    After  an- 


swer, the  defendant  may  file  inter- 
rogatories against  the  plaintiff. 
Equity  Rule  24.  A  defendant  need 
not  answer  under  oath  any  state- 
ment or  charge  unless  particularly 
interrogated  thereto,  and  one  of 
several  defendants  need  answer  on 
oath  only  such  as  he  himself  is 
particularly  interrogated  upon. 
Equity  Rule  93. 

Florida.  The  plaintiff  need  not 
interrogate  specially  unless  he  de- 
sires discovery.  Equity  Rule  21. 
The  form  of  the  interrogating  part 
is  fixed  by  Rule  22.  A  footnote  is 
to  be  appended,  as  part  of  the  bill, 
substantially  as  in  Alabama.  Equity 
Eules  23,  24. 

Illinois.  Interrogatories  are  to 
be  answered  whether  sworn  an- 
swer is  waived  or  not,  except  such 
interrogatories  as  are  covered  by 
the  allowance  of  exceptions,  plea 
or  demurrer.  J.  &  A.,  T903.  The 
plaintiff  may  file  further  inter- 
rogatories after  the  answer  has 
come  in.    J.  &  A.,  11906. 

Maine.  The  prayer  for  answer 
may  be  omitted  in  the  bill,  unless 
discovery  is  sought  or  an  answer 
on  oath  is  desired.     Equity  Rule  4. 

Maryland.  The  prayer  for  an- 
swer may  be  omitted  unless  oath  is 
desired  or  special  interrogatories 
are  appended,  in  which  case  there 
should  be  a  prayer  for  answer  un- 
der oath.  Code,  Sec.  146.  Special 
interrogatories  may  be  appended  to 
the  bill,  properly  numbered,  with 
the  particular  interrogatories  to  be 
answered  by  each  defendant  speci- 
fied; the  defendant  may  file  inter- 
rogatories against  the  plaintiff; 
either  plaintiff  or  defendant  may 
decline  to  answer  interrogatories 
when  he  could  have  protected  him- 


ORIGINAL  BILLS 


163 


self  by  demurrer.     Code,  Sees.  156, 
157;  Equity  Rules  24,  25. 

Massachusetts.  The  prayer  for 
answer  may  be  omitted  in  the  bill, 
but  discovery  may  be  had  by 
prayer,  petition  or  interrogatories. 
Eevised  Laws,  Ch.  159,  Sec.  12. 
The  defendant  may  be  examined 
on  interrogatories  upon  a  second 
answer  being  adjudged  insufficient. 
Equity  Rule  17.  Either  party  may 
file  interrogatories  against  the 
other,  as  at  law,  after  answer  filed, 
to  be  answered  by  the  other  party 
under  oath.     R.  L.  Ch.  159,  Sec.  15. 

Michigan.  Special  interrogato- 
ries are  rarely  used.  Puterbaugh, 
Mich.  Ch.  Pr.,  3d  ed.,  p.  26. 

Mississippi.  The  bill  may  con- 
tain special  interrogatories.  Code, 
Sec.  578. 

New  Jersey.  If  an  answer  with- 
out oath  is  prayed  to  the  bill,  the 
plaintiff  may  require  the  defend- 
ant to  answer  under  oath  annexed 
interrogatories  based  on  the  bill, 
the  answers  thereto  to  be  annexed 
to  the  answer  to  the  bill  and  sub- 
ject to  exceptions  as  a  part  thereof. 
Comp.  St.  "Chancery,"  Sec.  19; 
Romaine  v.  Hendrickson,  24  N.  J. 
E.  231  (1873).  The  defendant  may 
file  interrogatories  against  the 
plaintiff  after  filing  his  answer. 
Comp.  St.  "Chancery"  Sec.  32; 
Equity  Rule  77. 

Pennsylvania.  The  interroga- 
tories as  a  part  of  the  bill  shall 
be  omitted.  Equity  Rule  17.  Spe- 
cial interrogatories  may  however 
be  filed  separately  by  the  plaintiff, 
and  may  be  filed  by  the  defendant 
against  the  plaintiff  after  answer; 
in  either  case  to  be  filed  before 
the  taking  of  testimony,  unless 
leave  is  obtained  to  file  them  after- 
wards. They  are  to  be  divided  and 
numbered,  and  there   should  be   a 


note  specifying  which  interroga- 
tories each  party  is  to  answer. 
The  party  may  decline  to  answer 
any  interrogatory  from  which  he 
might  protect  himself  by  demurrer. 
Equity  Rules  38,  39. 

Tennessee.  Interrogatories  may 
be  filed  against  a  non-resident 
party  which  shall  be  answered  be- 
fore hearing.     Code,  Sec.  6280. 

Vermont.  The  general  interrog- 
atory is  sufficient  without  special 
interrogatories.  Equity  Rules  4, 
20.  But  the  defendant  need  not 
answer  any  interrogatory  from 
which  he  could  have  protected  him- 
self by  demurrer.  Equity  Rule  20. 
Oath  to  interrogatories  may  be 
required  though  oath  to  answer  is 
waived.     Equity  Rule  24. 

Virginia.  The  plaintiff  may 
waive  oath  to  the  general  answer 
but  require  sworn  answers  to  in- 
terrogatories.    Code,  Sec.   3281. 

United  States.  The  plaintiff  af- 
ter filing  his  bill  and  not  later  than 
21  days  after  issue  joined,  and 
the  defendant  after  filing  his 
answer  and  not  later  than  21  days 
after  issue  joined,  either  party 
at  any  time  thereafter  by  leave, 
may  file  interrogatories,  against 
the  opposite  party,  with  a  note 
stating  which  interrogatories  each 
party  is  to  answer.  No  more  than 
one  set  of  interrogatories  is  to  be 
filed  by  the  same  party  without 
leave.  Interrogatories  may  with 
leave  be  filed  against  an  officer  of 
a  corporation  party.  Interrog- 
atories are  to  be  answered  within 
15  days  after  served,  unless  the 
time  is  extended  with  leave.  An- 
swers are  to  be  separate  to  each 
interrogatory,  in  writing,  and  un- 
der oath.  Objections  may  be  taken 
and  heard.  For  failure  to  answer, 
the  bill  may  be  dismissed,  or  the 


164 


EQUITY  PRACTICE 


the  chancery  rules  ^  the  rules  or  practice  of  most  of  the 
jurisdictions  now  provide  that  the  confederacy  clause,  the 
charging  part,  and  the  jurisdictional  clause  may  be  omit- 
ted; the  interrogating  part  has  fallen  into  disuse;  and  in 
some  of  the  jurisdictions  the  prayer  for  process  may  be 
dispensed  with.^  The  bill  as  now  drawn  in  modern  chan- 
cery practice  contains  therefore  but  four  or  five  j)arts, — 
the  address,  the  names  and  residences  of  the  parties,  the 
stating  part,  the  prayer  for  relief,  and  sometimes  the 
prayer  for  process.  The  bill  is  usually  preceded  by  a 
formal  title  or  heading,  which  forms  no  part  of  the  bill 
itself,  but  is  simply  for  purjDoses  of  identification.  In 
the  second  volume  are  given  the  rules  and  statutes  of  the 
various  states,  and  in  the  third  volume  examples  of  the 
forms  in  current  use,  to  which  reference  may  be  made 
for  the  technical  practice  in  the  different  jurisdictions.^" 


answer  stricken  out,  and  the  party 
becomes  liable  to  an  attachment. 
Equity  Rule  58  of  the  Eules  of 
1913.  This  rule  is  novel  in  Fed- 
eral procedure.  Prior  to  this  rule, 
the  general  chancery  practice  in  re- 
gard to  the  interrogating  part  ob- 
tained in  the  Federal  courts.  It 
was  held  that  the  interrogatories 
must  not  extend  beyond  the  alle- 
gations of  the  bill  and  the  case. 
Gormully,  etc.,  Co.  v.  Bretz,  64 
Fed.  612  (C.  C.  1894).  The  same 
would  probably  be  held  under  the 
new  rule.  It  was  also  held  that 
the  defendant  must  make  full  an- 
swer to  an  interrogatory,  if  it  is 
apparent  what  is  the  purpose  of 
the  interrogatory,  though  the  in- 
terrogatory lack  fullness.  Lang- 
don  V.  Goddard,  F.  C.  8061,  3 
Story  13  (1843).  Interrogatories 
filed  with  the  bill  might  be  con- 
sidered a  part  of  it,  though  not  re- 
ferred to  therein.  Federal,  etc., 
Co.  V.  International,  etc.,  Co.,  119 


Fed.  385  (1902).  The  defendant 
was  not  obliged  to  answer  under 
oath  interrogatories  in  a  bill  which 
was  not  filed  for  discovery,  and 
which  expressly  waived  sworn  an- 
swer. Indiana,  etc.,  Co.  v.  Nichols, 
etc.,  Co.,  190  Fed.  579  (C.  C.  1911). 
See  also  discussion  of  interrog- 
atories of  witnesses  not  parties  to 
the  suit.     §  344,  post,  p.  568. 

8.  The  vitally  essential  parts  of 
a  bill  are  the  stating  part  and  the 
prayer  for  relief.  The  other  formal 
parts  may  be  omitted.  Comstock 
V.  H^rron,  45  Fed.  660  (C.  C.  1891). 
Compare  United  States  Equity 
Eule  25   (1913),  note  10,  post. 

9.  See  notes  4,  5,  6,  7,  ante,  and 
§  122,  note  64,  post,  p.  228. 

10.  By  Federal  Equity  Eules 
(1913),  numbers  18  and  25,  "the 
technical  forms  of  pleadings  in 
equity  are  abolished,"  and  "Here- 
after it  shall  be  sufficient  that  a 
bill  in  equity  shall  contain,  in  ad- 
dition to  the  usual  caption: 


ORIGINAL  BILLS 


165 


§  84.  — The  title.  Where  bills  are  entitled,  the  purpose 
of  the  heading  is  to  furnish  at  a  glance,  without  the 
trouble  of  reading  any  portion  of  the  bill,  a  succinct  iden- 
tification of  the  cause.  As  stated  above,  the  title  is  no 
part  of  the  bill  itself,^^  and  may  be  omitted  in  making  up 
the  bill  on  report,  or  in  quoting  the  bill  in  any  other  pro- 
ceeding or  in  the  same  proceeding  in  the  appellate  courts. 
If  there  is  more  than  one  party  plaintiff  or  defendant,  the 
words  ''et  al"  may  be  added  to  the  names  of  the  fi^rst 
party  mentioned  iii  the  title  to  indicate  these  others.  The 
heading  need  not  contain  the  rule  day  or  the  term  at 
which  the  bill  is  returnable. 

§  85.  — The  address.  The  address,  as  its  name  implies, 
is  the  part  in  which  the  pleader  directs  his  bill  of  com- 
plaint to  the  proper  court.  It  follows  immediately  after 
the  title,  when  there  is  a  title,  and  is  the  first  part  of  the 


"First,  the  full  name,  when 
known,  of  each  plaintiff  and  de- 
fendant, and  the  citizenship  and 
residence  of  each  party.  If  any 
party  be  under  any  disability  that 
fact  shall  be  stated. 

"Second,  a  short  and  plain  state- 
ment of  the  grounds  upon  which 
the  court 's  jurisdiction  depends. 

"Third,  a  short  and  simple  state- 
ment of  the  ultimate  facts  upon 
which  the  plaintiff  asks  relief, 
omitting  any  mere  statement  of 
evidence. 

"Fourth,  if  there  are  persons 
other  than  those  named  as  defend- 
ants who  appear  to  be  proper  par- 
ties, the  bill  should  state  why  they 
are  not  made  parties — as  that  they 
are  not  within  the  jurisdiction  of 
the  court,  or  cannot  be  made  par- 
ties without  ousting  the  jurisdic- 
tion. 

"Fifth,  a  statement  of  and 
prayer  for  any  special  relief  pend- 
ing  the    suit   or    on   final   hearing, 


which  may  be  stated  and  sought  in 
alternative  forms.  If  special  re- 
lief pending  the  suit  be  desired  the 
bill  should  be  verified  by  the  oath 
of  the  plaintiff  or  someone  having 
knowledge  of  the  facts  upon  which 
such  relief  is  asked."  See  the  dis- 
cussion of  this  rule  in  Maxwell, 
etc.,  Co.  V.  National  Casket  Co.,  205 
Fed.  515   (1913). 

A  mere  written  motion  cannot  be 
considered  the  equivalent  of  a  bill 
in  equity.  Schwitters  v.  Barnes, 
157  111.  App.  381   (1910). 

In  Alabama,  the  bill  should  con- 
tain -no  blanks  otherwise  it  will  be 
ordered  from  the  files.  Eq.  Eule 
10.  But  see  United  States,  etc., 
Co.  V.  Pittman,  62  So.  784  (Ala. 
1913);  Bell  v.  Burkhalter,  62  So. 
786   (Ala.   1913). 

11.  See  §  83,  <ante,  p.  164;  Mass. 
E.  L.  Ch.  159,  Sec.  12;  Spencer  v. 
Goodlett,  104  Tenn.  648  (1900); 
Sterrick  v.  Pugsley,  F.  C,  13379, 
1  Flipp.  350  (C.  C.  1874). 


166 


EQUITY  PRACTICE 


document  when  there  is  no  title.  It  should  contain  the 
approijriate  and  technical  description  of  the  court  in 
which  the  suit  is  brought.  In  a  few  jurisdictions,  the 
address  is  to  an  individual  chancellor,  but  in  most  juris- 
dictions the  address  should  be  impersonally  to  the  court.^- 
§  86.  — Names  and  residences  of  parties.  The  statutes 
or  chancery  rules  sometimes  prescribe  requirements  for 
names  and  residences  of  parties,^^  but  in  all  cases  the 
names  and  residences  of  all  persons  who  are  parties 
plaintiff  or  defendant  should  be  fillly  and  correctly 
stated. ^^     The  omission  to  make  a  sufficient  description 


12.  The  address  is  customarily, 
or  may  be  to  the  individual  chan- 
cellor in  Alabama,  Florida,  Mis- 
sissippi, New  Jersey,  Tennessee, 
and  West  Virginia.  In  the  other 
states  and  in  the  Federal  courts 
the  address  is  impersonally  to  the 
court.  See  forms  in  the  third  vol- 
ume of  this  work.  Some  of  the 
rules  expressly  cover  the  point. 
Delaware,  Eq.  Rule  20;  Florida,  Eq. 
Eule  17;  Maine,  Eq.  Rule  4;  Mary- 
land, Code,  Sec.  145,  Eq.  Rule  14; 
Michigan,  Eq.  Rule  1;  Mississippi, 
Code,  Sec.  577;  New  Hampshire, 
Eq.  Rule  81;  Pennsylvania,  Eq. 
Rule  16;  Tennessee,  Code,  Sec. 
6123;  Vermont,  Pub.  Stat.,  Sec. 
1241,  Eq.  Rule  3;  West  Virginia, 
Code  1913,  Sec.  4789.  In  England, 
address  was  by  name  to  the  cus- 
todian of  the  great  seal.  1  Dan. 
Ch.  Pr.  (6th  Am.  ed.)  462. 

In  Massachusetts,  the  address 
may  be  omitted.  R.  L.  Ch.  159, 
Sec.  12. 

Unless  the  form  is  regulated  by 
rules  of  court,  it  is  not  essential. 
Tiernan  v.  Poor,  1  G.  &  J.  (Md.) 
216,  16  Am.  Dec.  225  (1829).  The 
proper  address  may  be  added  by 
amendment  if  the  bill  is  rot  ad- 
dressed.       Andrews      v.      Tower's 


Exrs.,  15  Leg.  Int.  124  (Pa.  1858). 

13.  See  the  following  rules  and 
statutes:  Florida,  Eq.  Rule  17; 
Maine,  Eq.  Rule  4;  Maryland,  Code, 
Sec.  145,  Eq.  Rule  14;  Michigan, 
Eq.  Rule  1;  Mississippi,  Code,  Sec. 
577;  New  Hampshire,  Eq.  Rule  81; 
Pennsylvania,  Eq.  Rule  16;  Ten- 
nessee, Code,  Sec.  6123;  Vermont, 
Eq.  Rule  3;  United  States,  Eq. 
Rule  25. 

14.  Liddell  v.  Carson,  122  Ala. 
518  (1898);  Kanawha,  etc..  Bank 
V.  Wilson,  35  W.  Va.  36  (1891); 
McKay  v.  McKay,  28  W.  Va.  514 
(1886);  Barth  v.  Makeever,  F.  C. 
1069,  4  Biss.  206   (C.  C.  1868). 

In  Tennessee,  although  the  code 
provision  requires  that  plaintiff 's 
residence  be  stated  in  the  intro- 
duction, yet  a  bill  was  held  good 
on  demurrer  where  it  appeared  only 
in  the  caption.  Brubbs  v.  Colter, 
7  Baxt.  (Tenn.)  432  (1873).  And 
it  is  sufficient  if  the  representative 
capacity  in  which  the  defendant  is 
sued  is  stated  in  the  body  of  the 
bill.  Spencer  v.  Goodlett,  104 
Tenn.  648  (1900). 

Rule  25  of  the  Federal  Equity 
Rules  of  1913,  continues  the  re- 
quirement of  the  former  equity 
rules    that    the    name,    abode    and 


ORIGINAL  BILLS 


167 


may  be  taken  advantage  of  either  by  demurrer  ^^  or  by 
motion.^*^ 

In  tlie  case  of  an  infant  or  lunatic,  the  name  and  resi- 
dence of  the  next  friend  or  guardian  must  be  stated. 
Executors  or  administrators  need  not  be  described  as  such 
in  the  introductory  part  of  the  bill  but  it  must  appear 
in  the  stating  part  that  they  have  been  duly  appointed 
and  qualified."     Where  there  are  persons  without  the 


citizenship  of  all  parties  be  stated 
in  the  introduction.  Harvey  v. 
Eichmond,  etc.,  E.  Co.,  64  Fed.  19 
(C.  C.  1894).  See  for  suflaeiency 
of  allegations,  Tonapah,  etc.,  Co. 
V.  Douglass,  123  Fed.  936  (C.  C. 
1903);  Fruit  Cleaning  Co.  v. 
Fresno,  etc.,  Co.,  94  Fed.  845  (C. 
C.  1899).  But  the  allegation  of 
citizenship  of  the  parties  is  only 
necessary  when  jurisdiction  de- 
pends on  diverse  citizenship. 
Wright  V.  Skinner,  136  Fed.  694 
(C.  C.  1905).  Where  the  allega- 
tion is  necessary,  the  court  may 
dismiss  a  bill  of  its  own  motion 
for  failure  to  make  the  averments. 
Carlsbad  v.  Tibbitts,  51  Fed.  852 
(C.  C.  1892).  But  the  omission 
may  be  cured  by  amendment.  Har- 
vey V.  Eichmond,  etc.,  E.  Co.,  64 
Fed.  19  (C.  C.  1894) ;  U.  S.  v.  Pratt 
Coal  Co.,  18  Fed.  708  (C.  C.  1883). 

A  designation  of  parties  by  a 
fictitious  name  in  the  introductory 
part  of  the  bill  and  in  the  prayer 
for  process  is  insufficient,  at  least 
in  the  Federal  courts,  and  a  service 
by  virtue  of  such  a  prayer  will  be 
set  aside.  Kentucky  Silver  Min. 
Co.  V.  Day,  F.  C.  7,719,  2  Sawy.  468 
(C.  C.  1873).  And  in  general  a 
known  person  cannot  be  made  a 
party  defendant  except  by  name. 
Ex  parte  Eichards,  117  Fed.  658 
(C.  C.  1902). 

Merely    naming    a    person    as    a 


party  in  the  caption  or  introduc- 
tion does  not  make  such  person 
a  party  to  the  bill  unless  the  bill 
contains  some  allegation  as  to  his 
interest  or  claim  of  interest  in  the 
subject  matter,  or  where  named  as 
defendant  some  connection  with 
the  same  or  some  action  in  con- 
nection therewith  detrimental  to 
the  plaintiff.  Preston  v.  West,  55 
W.  Va.  391  (1904);  Chapman  v. 
Pittsburg  &  S.  E.  Co.,  18  W.  Va. 
184   (1881). 

But  by  West  Virginia  Code  1913, 
Sec.  4791,  every  person  so  described 
in  the  caption  is  a  defendant,  al- 
though there  be  no  prayer  that  he 
be  made  a  party. 

A  bill  filed  by  a  married  woman 
need  not  state  that  she  is  married. 
Paige  V.  Broadfoot,  100  Ala.  610 
(1893). 

15.  Liddell  v.  Carson,  122  Ala. 
518   (1898). 

16.  Wright  V.  Skinner,  136  Fed. 
694  (C.  C.  1905) ;  Harvey  v.  Eich- 
mond, etc.,  E.  Co.,  64  Fed.  19  (C. 
C.  1894). 

17.  Eansom  v.  Geer,  30  N.  J.  Eq. 
249   (1878). 

But  in  West  Virginia  in  a  bill 
brought  by  an  executor  he  must 
describe  himself  as  such,  and  a 
description  as  "personal  represent- 
ative" is  not  sufficient.  Capehart 
V.  Hale,  6  W.  Va.  547  (1873). 


168  EQUITY  PRACTICE 

jurisdiction  whose  presence  would  be  required  if  within 
the  jurisdiction,  they  must  be  named  as  parties  and  the 
facts  stated  as  to  their  residence.^  ^  Where  a  suit  is 
brought  by  or  against  one  or  more  persons  for  them- 
selves and  others  who  have  a  like  interest  but  who  are 
too  numerous  to  be  joined,  this  should  be  so  alleged  in 
the  introductory  part  of  the  bill,  since  otherwise  the  bill 
may  be  open  to  objection  for  want  of  parties.^®  Likewise 
when  there  are  parties  in  interest  whose  names  or  resi- 
dences are  unknown  to  the  plaintiff,  it  should  be  so 
stated.2« 

§  87.  The  stating  part.  The  stating  part  of  the  bill  con- 
tains a  statement  of  all  the  material  facts  of  the  plaintiff's 
case.  It  forms  the  substance  of  the  bill  and  is  obviously 
the  most  difficult  part  of  all  to  frame.  What  then  are  the 
essential  points  to  be  set  forth  in  the  stating  part  of  a 
bill?  How  should  these  points  be  stated  to  satisfy  the 
rules  of  good  pleading  ?    In  short,  what  are  the  necessary 

18.  Baker  v.  Atkins,  67  Me.  305  New    Hampshire.       Windsor    v. 
(1873);     Palmer    v.    Stevens,     100  Bailey,  55  N.  H.  218  (1875). 
Mass.   461    (1868);   DeWolf  v.   De-  United  States.     Tobin  v.  Walkiu- 
Wolf,   4   E.   I.   450    (1857);    Eliode  shaw,   F.   C.   14,068,   1   McC.  25    (C. 
Island  Equity  Eule  12.  C.  1855). 

It  is  sufficient  if  the  excuse  for  See  also  notes  to  §  59  in  Chapter 

non-joinder  appears  generally  from  IV,  ante,  pp.  92  et  seq. 

the    bill,    without    being    specially  It  is,  however,  not  necessary  that 

pleaded.     Eustis,  etc.,   Co.  v.  Saco  the   facts   excusing  non-joinder  be 

Brick  Co.,  198  Mass.  212   (1908).  stated  formally,  if  they  appear  in 

19.  Alabama.     Steiner  v.  Parker,  the  bill.     Willink  v.  Morris  Canal, 
108    Ala.    357     (1895);    Savannah,  etc.,  Co.,  4  N.  J.  E.  377  (1843). 
etc.,  E.   Co.   V.   Lancaster,   62   Ala.  20.  Cobb   v.  Hawsey,  47  So.  484 
555   (1878).  (Fla.    1908);    Davis   v.   Hooper,   33 

Illinois.     Gilham  v.  Cairns,  1  111.  Miss.  183  (1857);  Carter  v.  Uhlein, 
164   (1825).  36   Atl.   956    (N.   J.   E.   1897);    De- 
Maine.     Mason  v.  E.  E.   Co.,  52  Wolf     v.     DeWolf,     4     E.     I.     450 
Me.    82,    108     (1861);    Crocker    v.  (1857);  Bailey  v.  Morgan,  13  Tex. 
Craig,  46  Me.  327  (1858).  342  (1855). 

Massachusetts.         Eeynolds       v.  And  see  §  58,  «?ife,  p.  91. 
Davis,  198  Mass.  294   (1908);  Wil- 
kinson    v.    Stitt,     175     Mass.     581 
(1900). 


OEIGINAL  BILLS  169 

allegations  and  how  should  they  be  made  ?  First  as  to  the 
necessary  allegations. 

§  88.  — What  it  should  state.  As  a  general  statement 
it  may  be  said  that  in  order  to  prevail  in  his  suit,  the 
plaintiff  has  three  fundamental  points  to  establish  by  his 
allegations  and  proof.  He  must  show,  first  that  he  is  the 
person  in  interest  entitled  to  relief,  provided  the  facts 
justify  any  relief;  secondly,  that  the  facts  do  justify  the 
relief  prayed  for  against  some  person;  and  third,  that  the 
defendant  is  the  person  against  whom  the.  relief  is  justi- 
fied. Unless  the  plaintiff's  bill  contains  sufficient  allega- 
tions to  cover  these  points,  it  must  be  dismissed  without 
any  consideration  of  the  evidence.  "Good  pleading  is  as 
essential  upon  the  equity  side  as  upon  the  law  side  of 
the  court.  Evidence  without  allegations  is  as  futile  as 
allegations  without  evidence.  "^^  In  other  words,  relief 
in  equity  no  matter  what  the  evidence  may  be,  can  only 
be  granted  in  accordance  with  some  one  or  more  allega- 
tions in  the  bill.  The  decree  of  the  court  is  rendered 
secundum  allegata  et  probata.    Variance  is  fatal.^^ 

§  89.  Plaintiff  must  show  his  interest  or  title.  Want  of 
interest  in  the  subject  matter  of  a  bill  on  the  part  of  a 

21.  Merrill  v.  Washburne,  83  Me.  112  Md.  155   (1910) ;  Dilly  v.  Bar- 
189   (1891).  nard,  8  G.  &  J.  171   (1836). 

22.  Alabama.         Duckworth      v.  Massachusetts.     Drew   v.  Beard, 
Duckworth,     35     Ala.     70     (1859);  107  Mass.  64   (1871). 

Strange    v.    Watson,    11    Ala.    324,  Michigan.       Elliott     v.     Amazon 

336  (1847).  Ins.     Co.,    49     Mich.    579     (1883); 

Florida.      Goulding,    etc.,    Co.    v.  Booth    v.    Thompson,   49    Mich.    73 

Johnson,    61   So.   441    (Fla.    1913);  (1882). 

Lyle  V.  Winn,  45  Fla.  419   (1903);  Mississippi.     Harper  v.  Lacey,  62 

Anderson  v.  Northrop,  30  Fla.  612  Miss.  5   (1884). 

(1892).  New  Hampshire.     Perry  v.  Carr, 

Illinois.     Higgins  v.  Higgins,  219  41  N.  H.  371  (1860),  semble. 

HI.    146,    109    Am.    St.    Kep.    316  New  Jersey.     Polhemus  v.   Hol- 

(1905);    Eowan   v.   Bowles,   21   111.  land    Trust    Co.,    61    N.    J.    E.    654 

17   (1858);   Quinn  v.  McMahan,  40  (1900);  Stucky  v.  Stucky,  30  N.  J. 

111.  App.  593  (1891).  E.  546  (1879). 

Maine.       Merrill     v.      Washburn,  Pennsylvania.     Sherman  v.  Dela- 

83  Me.  189   (1891).  ware,  etc.,  Tel.  Co.,  36  Pa.  Supr.  Ct. 

Maryland.      Euler   v.    Schroeder,  487  (1908). 


170 


EQUITY  PRACTICE 


plaintiff  to  a  suit  (i.  e.  misjoinder  of  a  plaintiff)  is  a  fatal 
objection  to  a  bill  seeking  any  kind  of  relief,  if  the  objec- 
tion is  taken  seasonably  and  is  not  cured  by  amendment.-^ 
Consequently  the  title  or  right  in  respect  to  which  the 
plaintiff  seeks  relief  should  be  set  forth  with  certainty.^^ 
He  must  show  not  merely  that  he  has  an  interest,  but  a 
present  interest  absolute  or  conditional  and  not  a  mere 
future  possibility.-^  Thus  in  a  bill  for  specific  perform- 
ance of  a  contract  to  buy  plaintiff's  property  the  plain- 
tiff must  allege  his  title  to  the  estate.^^  So  in  a  bill  filed 
for  the  appointment  of  new  trustees  under  a  will  or  for 
the  construction  of  a  will,  the  plaintiff  must  show  that 


Rhode  Island.  Tillinghast  v. 
Champlin,  4  K.  J.  173   (1856). 

Tennessee.  Duluth  N.  Bank  v. 
Ins.  Co.,  85  Tenn.  76  (1886);  Ran- 
dolph V.  Bank,  9  Lea  63  (1882); 
Johnson  v.  Luckado,  12  Heisk.  270 
(1873). 

Vermont.  Sanborn  v.  Kittredge, 
20  Vt.  632  (1847). 

Virginia.  Edichal,  etc.,  Co.  v. 
Columbia,  etc.,  Co.,  87  Va.  641 
(1891);  Welfley  v.  Shenandoah, 
etc.,  Co.,  83  A'a.  768  (1887). 

West  Virginia.  Curroy  v.  Law- 
ler,  29  W.  Va.  Ill  (1886);  Bier  v. 
Smith,  25  W.  Va.  830  (1885);  Lamb 
V.  Laughlin,  25  W.  Va.  300  (1884). 

United  States.  Henry  v.  Suttle, 
42  Fed.  91  (C.  C.  1890);  Spies  v. 
Chicago,  etc.,  R.  Co.,  40  Fed.  34 
(C.  C.  1889);  Britton  v.  Brewster, 
2  Fed.  160  (C.  C.  1880). 

Some  of  the  above  cases  indicate 
particularly  that  relief  on  other 
grounds  appearing  in  proof  cannot 
be  given  when  relief  has  been 
asked  solely  on  the  ground  of 
fraud.  But  compare  Bigham  v. 
Madison,  103  Tenn.  358  (1899). 


Relief  may  be  granted  upon  mat- 
ters not  averred  in  the  bill  if  they 
appear  in  the  answer  and  are 
proved.  Bang  v.  Windmill  Co.,  96 
Tenn.  361   (1895). 

23.  See  Chapter  IV,  §  71,  <inte, 
p.  135,  §  64A  and  particularly  notes 
99  to  8,  ante,  pp.  107  et  seq.  See 
also  the  following  cases:  Rab- 
berman  v.  Hause,  89  111.  209 
(1878);  Leeds  v.  Illinois,  etc.,  In- 
stitute, 122  111.  App.  650  (1905); 
Steele  v.  Hess,  112  Mich.  678 
(1897);  Kase  v.  Burnham,  206  Pa. 
330  (1903);  Page  v.  Merchants, 
etc..  Bank,  59  S.  W.  367  (Tenn. 
1900);  Ellis  v.  Whiteacre,  106  Va. 
1  (1906);  Saunders  v.  Baltimore, 
etc.,  Assn.,  99  Va.  140  (1901). 

Plaintiffs  who  sue  jointly  must 
show  a  joint  interest.  Baltimore, 
etc.,  R.  Co.  V.  Adams  Ex.  Co,  22 
Fed.  404  (C.  C.  1884). 

24.  See  section  97,  post,  p.  185, 
and  especially  note  62. 

25.  See  Chapter  IV  "Parties" 
§  64A,  note  1,  'Onie,  p.  107. 

26.  See  eases  on  specific  per- 
formance cited  in  notes  36  and  37, 
post,  p.  175. 


ORIGINAL  BILLS  171 

he  has  some  actual  interest  under  the  will,  or  in  its  inter- 
pretation.^^ 

Moreover,  a  i)laintiff  must  not  only  show  in  his  bill  an 
interest  in  the  subject  matter  but  must  also  show  that 
he  has  complied  with  all  requisite  forms  and  has  a  proper 
title  to  institute  suit  concerning  that  interest.  Thus 
where  an  executor  does  not  appear  by  his  bill  to  have 
proved  the  will  of  his  testator,  or  appears  to  have  proved 
it  improperly  or  insufficiently,  since  he  does  not  show  a 
complete  title  to  sue  as  executor,  a  demurrer  will  lie.^^ 
So  a  cestui  que  trust  cannot  bring  suit  in  his  own  name 
to  enforce  the  trust  unless  he  alleges  that  the  trustee 
has  refused  to  sue.^*^  So  in  a  judgment  creditor's  bill 
brought  under  general  equity  powers  to  set  aside  a  fraud- 
ulent conveyance,  the  plaintiff  in  those  cases  where  the 
title  has  once  been  in  the  debtor  must  allege  that  the 
lien  of  the  plaintiff's  judgment  has  been  fixed  under  the 
statutes  of  the  state,  either  by  the  issuing  of  execution, 
or  by  execution,  levy  and  conveyance,  or  otherwise  as 
the  case  may  be.^^    Likewise  a  bill  to  remove  a  cloud  on 

27.  Hazeltine  v.  Shepherd,  99  Me.  v.  Del  Valle,  1  Wall.  (U.  S.)  1,  17 

495    (1905);   Drake  v.  True,  72  N.  L.  ed.  515   (1863). 
H.   322    (1903);   Norris   v.   Beards-  28.  DanielPs    Ch.    Pr.    (6th    Am. 

ley,   62   Atl.   425    (N.  J.   E.   1905);  gd.),    p.    318,    citing    Humphreys    v. 

Torrey  v.  Torrey,  55  N.  J.  E  410  ingledon,  1  P.  Wms.  752,  Champion 

(1897);    Meacham    v    Graham,    98  y.  Parish,  3  Edw.  Ch.  581. 
Tenn.   190    (1897);   Harris   v.   Har-  g^^   executors   or   administrators 

ris,  79  Vt.  22  (1906).  ^^^   ^^^^^    ^    ^.jj   ^gf^j-g    proving 

And     see     the     following     cases  ^.^^  ^^  ^.^^.^^  ^^^  j^^^^^^^  alleging 
where   the    courts   would   not    con-  ^^^^   ^^^^    ^^^^^    ^1^.^^^^^    qualified, 
strue    wills    for    a    person    not    af-  ^^^  ^^^  ^.ji  ^-jj  ^^^^^  ^^^.^  ^^^^^^^_ 
fected,  or  in  order  merely  to  deter-  ^^^.   ^^^^  ^^  qualifying  afterwards 
mine   a   future   right.      Burgess   v.  ^,  .  •.•        j.     -u 
Shepherd,  97  Me.  522  (1903);  Wahl  '^'^  ^''   '"^   a  position   to   have   a 
V.  Brewer,  80  Md.  237  (1894);  Hall  '^^''^^-     Humphreys  v.  Ingledon,  1 
V.  Coggswell,  183  Mass.  521  (1903) ;  ^-  ^"^^-  ^^2;   Humphreys  v.  Hum- 
Wilbur   V.   Maxam,   133   Mass.   541  P^reys,  3  P.  Wms.  349;  Tell  v.  Lut- 
(1882) ;     Parker     v.     Parker,     119  ^'it^ge.  2  Atk.  120,  Barn.  320. 
Mass.  478  (1876);  Morse  V.  Lyman,           29.  Bailey    v.    Selden,    112    Ala. 
64    Vt.     167     (1891);     Eexroad    v.  593  (1895). 
Well,  13  W.  Va.  812   (1878);  Cross           30.  Illinois.     French   v.   Com.  N. 


172 


EQUITY  PRACTICE 


title  is  defective  if  it  does  not  sufficiently  state  the  plain- 
titi"'s  title,  and  either  his  actual  possession  or  that  the 
land  is  wild  and  unoccupied."^ 

§  90.  Plaintiff  must  state  a  case  relievable  in  equity.    It 
is  a  fundamental  and  indispensable  rule  that  the  allega- 


Bank,  199  HI.  213  (1902);  Newman 
V.  Willetts,  52  111.  98  (1S69). 

Maine.  Baxter  v.  Moses,  77  Me. 
465  (1SS5);  Griffin  v.  Nitcher,  57 
Me.  270  (1869);  Corey  t.  Greene, 
51  Me.  115   (1863). 

Mississippi  Fleming  v.  Grafton, 
54  Miss.  79  (1876);  Yasser  v.  Hen- 
derson, 40  Miss.  519,  90  Am.  Dec. 
351  (1866). 

New  Hampsbire.  Tappan  v. 
Evans,  11  X.  H.  311  (1840). 

New  Jersey.  Boberts  v.  Hedges, 
16  X.  J.  E.  299  (1863). 

Rhode  Island..  McKenna  v. 
Crowley,  16  E.  I.  364  (ISSS). 

United  States.  Morrow  Shoe 
Mfg.  Co.  V.  Xew  E.  Shoe  Co.,  57 
Fed.  685,  6  C.  C.  A.  652,  24  L.  E.  A. 
417  (1893). 

The  distinction  between  this 
class  of  case  and  biUs  to  reach  and 
apply,  in  which  latter  case  the  re- 
turn also  of  an  execution  unsatis- 
fied is  usually  necessary,  (see  note 
38,  post),  is  not  always  perceived 
by  the  courts,  and  they  have 
sometimes  required  an  allegation  of 
the  return  of  an  execution  unsatis- 
fied in  a  bill  to  set  aside  a  fraudu- 
lent conveyance.  Stockton  v.  Lip- 
pincott,  37  X.  J.  E.  443  (1883); 
Bigelow  Blue  Stone  Co.  v.  Magee, 
27  X.  J.  E.  392  (1876). 

Under  statutory  provisions  in 
some  of  the  states,  a  creditor  who 
has  not  yet  reduced  his  claim  to 
judgment  may  bring  a  bill  to  set 
aside  a  fraudulent  conveyance,  and 
in  such  case  of  course  no  allegation 
of    judgment    is    necessary.      Hen- 


derson V.  Farley  X.  Bank,  123  Ala. 
547,  82  A.  S.  B.  140  (1898);  Steiner 
Land,  etc.,  Co.  v.  Key,  118  Ala.  546 
(1897);  Gibson  v.  Trowbridge,  etc.. 
Co.,  93  Ala.  579  (1890).  But  these 
statutes  are  of  no  force  in  the  Fed- 
eral courts.  Hollins  v.  Brierfield. 
etc.,  Co.,  150  U.  S.  371,  37  L.  ed. 
1113   (1893). 

31.  Florida.  Simmons  v.  Carlton, 
44  Fla.  719  (1902);  Clem  v.  Meser- 
ole,  44  Fla.  191   (1902). 

Illinois.  Glos  v.  Miller,  213  111. 
22  (1904);  Illinois,  etc.,  Co.  v. 
Speyer,  138  111.  137   (1891). 

Maine.  Jones  v.  Light,  86  Me. 
437  (1894);  Eobinson  v.  Bobinson, 
73  Me.  170  (1882). 

Maryland.  Carswell  v.  Swindell, 
102  Md.  636  (1906);  Keys  v.  For- 
rest. 90  Md.  132   (1899).' 

MicMgan.  Kilgannon  v.  Jenkin- 
son,  51  Mich.  240  (1883). 

Mississippi.  Jones  v.  Bogers,  85 
Miss.  802  (1905);  Pierce  v.  Hunter, 
73  Miss.  754  (1896). 

Virginia.  Xeff  v.  Eyman,  100 
Ta.  521  (1902);  Smith  v.  Thomas, 
99  Va.  86  (1901). 

United  States.  Bent  v.  Hall,  119 
Fed.  342,  56  C.  C.  A.  246  (1903); 
McGuire  v.  Pensacola,  etc.,  Co.,  105 
Fed.  677,  44  C.  C.  A.  670  (1901); 
Goldsmith  v.  Gilliland,  22  Fed.  865, 
10  Sawy.  606  (C.  C.  1885). 

Local  statutes  dispensing  with 
plaintiff's  possession  as  an  element 
of  his  case  are  of  no  effect  in  a 
Federal  court  of  equity.  Southern 
Pac.  B.  Co.  V.  Goodrich,  57  Fed. 
879   (C.  C.  1893). 


ORIGINAL  BILLS 


173 


tions  of  tlie  bill  must  state  a  case  within  the  jurisdiction 
of  a  court  of  equity.  If  the  bill  fails  in  this  respect  the 
error  is  fatal  in  every  stage  of  the  cause,  and  cannot  be 
cured  by  consent  of  the  parties.  It  is  the  duty  of  the 
court  to  stay  proceedings  whenever  its  lack  of  jurisdiction 
is  manifest;  and  it  matters  not  whether  this  defect  is 
brought  to  the  attention  of  the  court  by  a  party  or  by  an 
amicus  curiae,  or  is  obtained  by  an  inspection  of  the  pro- 
ceedings at  the  instance  of  the  court  itself.^- 

§  91.  Adequate  remedy  at  law.  In  suits  where  the 
law  also  provides  a  remedy,  except  in  those  branches  of 
jurisdiction  such  as  fraud,  where  in  nearly  all  jurisdic- 
tions equity  takes  jurisdiction  concurrently  with  the  law 
even  though  the  legal  remedy  be  entirely  adequate,  the 
bill  must  always  show  a  state  of  facts  for  which  the  rem- 
edy provided  by  the  law  would  not  be  adequate  and  com- 
plete, otherwise  it  will  be  open  to  a  general  demurrer.^^ 


32.  Particularly  is  this  true  in 
the  Federal  courts,  where  by  stat- 
ute in  equity  proceedings  the 
courts  are  required  to  disclaim  ju- 
risdiction on  their  own  motion  at 
any  stage  of  a  case  if  satisfied  that 
any  fact  essential  to  jurisdiction 
does  not  exist.  If  facts  are  not 
alleged  sufiieient  to  support  equity 
jurisdiction  and  are  not  sustained 
with  proof,  the  court  will  assume 
that  it  is  without  jurisdiction. 
Klenk  v.  BjTue,  143  Fed.  lOOS,  (C. 
C.  1906). 

But  in  the  state  courts  it  is  al- 
ways prudent  for  the  defendant  to 
take  the  objection  in  limine,  for  the 
objection,  if  first  taken  later,  may 
be  too  late,  where  the  cause  in  its 
general  nature  is  not  wholly  for- 
eign to  equity  jurisdiction.  Law 
V.  Ware,  238  111.  360  (1909);  Hard- 
ing V.  Olson,  177  HI.  298  (1898), 
aff.  76  HI.  App.  475;  Am.  Hide,  etc., 
Co.   V.   Anderson,   153  111.   App.   79 


(1910):  Knikel  v.  Spitz,  74  X.  J.  E. 
581   (1908). 

A  demurrer  for  want  of  equity 
will  not  be  sustained  where  the 
facts  alleged  set  up  both  an  equit- 
able and  a  legal  cause.  Town  of 
Strawberry  Hill  v.  Chicago,  etc., 
E.  Co.,  41  Fed.  568   (C.  C.  1890). 

33.  Accordingly  in  the  following 
cases  the  plaintiff's  bill  was  held 
insufficient  because  if  did  not  ap- 
pear that  the  legal  remedy  was 
inadequate. 

Delaware.  Fleming  v.  Cooper,  5 
Del.  Ch.  433  (1882). 

Florida.  Durham  t.  Edwards,  50 
Fla.  495  (1905);  Coogler  v.  Mayo, 
21  Fla.  126  (1884);  Bowes  v.  Hoeg, 
15  Fla.  403  (1875). 

Illinois.  Strauss  v.  Phillips,  189 
HI.  9  (1901),  aff.  91  111.  App.  373 
(1900);  Grove  v.  W.  W.  Kimball 
Co.,  148  111.  App.  61  (1909);  Lan- 
zit  V.  Sefton  M.  Co.,  83  111.  App. 
168  (1899). 


174 


EQUITY  PRACTICE 


This  does  not  mean  tliat  tlie  bill  is  defective  unless  it  con- 
tains an  express  allegation  that  the  plaintiff  has  not  a 
plain,  adequate  and  complete  remedy  at  law.  Such  an 
allegation  constituted  the  jurisdictional  clause  which,  if 
it  ever  was  necessary,  has  been  generally  abolished  by  the 
statutes  and  chancery  rules  as  shown  above.^"*    It  is  the 


Maine.  Loggie  v.  Chandler,  95 
Me.  220  (1901);  Rockland  v.  Water 
Co.,  86  Me.  59  (1893);  Porter  v. 
Land  &  Water  Co.,  84  Me.  195 
(1892). 

Maryland,  Bryson  v.  Rayner,  25 
Md.  424,  90  Am.  Dec.  69  (1866); 
Ridgway  v.  Toram,  2  Md.  Ch.  303 
(1850). 

Massachusetts.  Tuttle  v.  Batch- 
elder,  etc.,  Co.,  170  Mass.  315 
(1898);  Ward  v.  Peck,  114  Mass. 
121  (1873);  Bassett  v.  Brown,  100 
Mass.  355  (1868). 

MicMgan.  City  of  Detroit  v. 
Board  of  P.  W.,  23  Mich.  546 
(1871). 

Mississippi.  McKee  v.  Coffee,  58 
Miss.  653  (1881);  Curtis  v.  Blair, 
26  Miss.  309,  59  Am.  Dec.  257 
(1853). 

New  Hampshire.  Williams  v. 
Matthewson,  73  N.  H.  242  (1905); 
Burnham  v.  Kempton,  44  N.  H.  78 
(1862). 

New  Jersey.  Taylor  v.  Wright, 
76  N.  J.  E.  121  (1909);  Filley  v. 
Van  Dyke,  74  N.  J.  E.  219  (1908); 
Vanderbilt  v.  Mitchell,  71  N.  J.  E. 
633  (1906);  Philhower  v.  Todd,  11 
N.  J.  E.  54  (1855). 

Pennsylvania.  Rice  v.  Ruckle, 
225  Pa.  231  (1909);  Price  v.  Hur- 
ley, 201  Pa.  606  (1902). 

Tennessee.  (This  ground  of  ob- 
jection to  a  bill  in  equity  "has  al- 
most ceased  to  exist"  in  Tennessee. 
Gibson's  Suits  in  Chancery  (2nd 
ed.).  Sec.   294.) 


Vermont.  School  Dist.  v.  Shel- 
don, 71  Vt.  95  (1898);  Southworth 
V.  Kimball,  58  Vt.  337   (1886). 

Virginia.  South,  etc.,  R.  Co.  v. 
Virginia,  etc.,  R.  Co.,  104  Va.  323 
(1905);  Kane  v.  Va.,  etc..  Iron  Co., 
97  Va.  329  (1899);  Shenandoah, 
etc.,  R.  Co.  V.  Robinson,  82  Va.  542 
(1886). 

West  Virginia.  Thompson  v. 
Whitaker  Iron  Co.,  41  W.  Va.  574 
(1895);  Laidley  v.  Laidley,  25  W. 
Va.  525  (1885);  Surber's  Admr.  v. 
McClintic,  10  W.  Va.  236  (1877). 

United  States.  Root  v.  Lake 
Shore,  etc.,  R.  Co.,  105  U.  S.  189, 
26  L.  ed.  975  (1881);  Sawyer  v. 
Atchison,  etc.,  R.  Co.,  129  Fed.  100, 
63  C.  C.  A.  602  (1904);  Strang  v. 
Richmond,  etc.,  R.  Co.,  93  Fed.  71 
(C.  C.  1899). 

And  see  also  cases  in  the  next 
following  notes,  post. 

Allegations  showing  the  inade- 
quacy of  legal  remedy  are  as  es- 
sential in  a  supplemental  as  in  an 
original  bill.  Blythe  v.  Hinkley, 
84  Fed.  246  (C.  C.  1897)  aff.  173 
U.  S.  501,  43  L.  ed.  783  (1899). 

A  stipulation  waiving  objections 
on  the  ground  of  adequacy  of  legal 
remedy  is  repugnant  to  a  demurrer 
to  the  bill,  and  may  be  disregarded 
and  the  bill  dismissed  for  want  of 
equity  if  legal  remedy  is  adequate. 
Richards  v.  Lake  Shore,  etc.,  B. 
Co.,  124  111.  516,  aff.  25  111.  App. 
344  (1887-8). 

34.  See  note  6,  onte,  p.  160. 


ORIGINAL  BILLS 


175 


allegation  of  sufficient  facts  and  circumstances,  and  not 
the  general  conclusion  upon  those  facts  that  is  required. 
Thus  in  a  bill  seeking  the  specific  performance  of  a  con- 
tract other  than  for  the  sale  of  land,  the  bill  must  show  the 
peculiar  reasons  why  the  damages  given  at  law  would  not 
furnish  an  adequate  remedy  to  the  plaintiff.^^  In  a  bill 
for  specific  performance  of  a  contract  for  the  sale  of  land, 
since  the  remedy  at  law  is  almost  always  held  inadequate 
in  such  cases, ^"^  it  would  seem  sufficient  to  set  out  the  con- 
tract without  more,  but  in  a  bill  for  specific  delivery  of  a 
chattel  the  peculiar  nature  of  the  chattel  should  be  par- 
ticularly stated.^'  So  in  a  creditors'  bill  to  reach  and 
apply  property  of  the  debtor,  brought  under  the  general 


35.  Florida.  Hendry  v.  Whid- 
den,  48  Fla.  268  (1904);  Dorman  v. 
McDonald,  47  Fla.  252   (1904). 

Illinois.  Kerfoot  v.  Brecken- 
ridge,  87  111.  205  (1877);  Eowell 
V.  Covenant,  etc.,  Assn.,  84  111.  App. 
304  (1899). 

Maine.  Gore  v.  Biddeford,  85 
Me.  393   (1893). 

Maryland.  Wadsworth  v.  Man- 
ning, 4  Md.  59  (1853). 

Massachusetts.  Clark  v.  Flint, 
22  Pick.  231,  33  Am.  Dee.  733 
(1839). 

New  Hampshire.  Eckstein  v. 
Downing,  64  N.  H.  248,  10  A.  S.  R. 
404  (1886). 

Pennsylvania.  Ealston  v.  Ihm- 
sen,  204  Pa.  588  (1903);  Smaltz's 
Appeal,  99  Pa.  310  (1882). 

Hhode  Island.  Manton  v.  Ray, 
18  R.  I.  672  (1894). 

Vermont.  Angus  v.  Robinson's 
Adnir.,  62  Vt.  60  (1889). 

Virginia.  Langford  v.  Taylor,  99 
Va.  577   (1901). 

West  Virginia.  Sturm  v.  Mc- 
Griffin,  48  W.  Va.  595  (1900); 
McRay  v.  Bassett,  26  W.  Va.  570 
(1885). 


United  States.  Bernier  v.  Girs- 
com,  etc.,  Co.,  161  Fed.  438  (C.  C. 
1908);  Marthinson  v.  King,  150 
Fed.  48  (C.  C.  A.  1906) ;  American 
Fisheries  Co.  v.  Lennen,  118  Fed. 
869   (C.  C.  1902). 

36.  Illinois.  Cumberledge  v. 
Brooks,  235  111.  249   (1908). 

Maine.  Nugent  v.  Smith,  85 
Me.  433  (1892).  But  see,  contra, 
Porter  v.  Land  Co.,  84  Me.  195 
(1892). 

Maryland.  Maryland  Clay  Co.  v. 
Simpers,  96  Md.  1   (1902). 

New  Jersey.  Repetto  v.  Baylor, 
61  N.  J.  E.  501  (1901).  See,  contra, 
Blake  v.  Flatley,  44  N.  J.  Eq.  228, 
6  A.  S.  R.  886   (1888). 

Pennsylvania.  Conover  v.  Wright, 
9  Pa.  Dist.  688  (1900). 

Virginia.  Tidewater  R.  Co.  v. 
Hurt,  109  Va.  204  (1909);  Ayers 
V.  Robins,  30  Grat.  (Va.)  105 
(1878). 

United  States.  Wilhite  v.  Skel- 
ton,  149  Fed.  67,  78  C.  C.  A.  635 
(1906);  Pensacola,  etc.,  v.  Lehman, 
57  Fed.  324,  6  C.  C.  A.  349  (1839). 

37.  See  cases  in  note  35,  ante. 


176  EQUITY  PRACTICE 

equity  powers,  the  plaintiff  must  show  that  he  has 
exhausted  all  his  legal  remedies  before  coming  into  equity, 
either  by  alleging  a  return  of  itulla  bona  where  the  title 
has  not  been  in  the  debtor,  or  where  the  title  has  been  in 
the  debtor  by  alleging  that  the  plaintiff  has  levied  on  the 
property.^^ 

But  although  the  express  allegation  of  the  inadequacy 
of  the  legal  remedy  is  of  no  importance  and  its  omission 
will  not  be  regarded,  yet  it  is  entirely  proper  and  even 
advisable  to  conclude  the  statement  of  the  facts  or 
reasons  which  show  the  legal  remedy  to  be  insufficient 
with  an  express  averment  of  that  fact  in  order  to  point 
the  puri^ose  of  the  preceding  allegations. 

§  92.  Facts  justifying  relief.  Besides  the  necessity  for 
alleging  a  case  within  the  jurisdiction  of  a  court  of  equity, 
in  the  proper  meaning  of  the  word,  i.  e.  a  case  which  a 
court  of  equity  has  the  power  to  consider, — it  is  also 
indispensable,  obviously,  to  present  a  case  which  will  jus- 
tify a  decree  for  relief  by  the  court  after  it  has  considered 
it.  However  strong  a  case  the  plaintiff  may  be  able  to 
establish  by  his  evidence  and  whatever  the  real  facts  may 
be,  all  the  facts  essential  to  justify  relief  must  appear  on 
the  face  of  the  bill,  otherwise  it  will  be  dismissed  for  want 
of  equity.^''  Thus  in  a  bill  for  relieif  in  case  of  a  lost  deed, 
the  bill  is  insufficient  on  demurrer  for  the  want  of  equity, 
if  it  fails  to  show  the  circumstances  of  the  loss  of  the  miss- 
ing deed,  or  at  least  that  the  loss  was  occasioned  without 

38.  Newman   v.   "Willetts,   52   111.  referred  to   in   the  text.    .In  cases 

98    (1869);    Baxter    v.    Moses,    77  under  such  statutes  it  is  obviously 

Me.  465  (1885);  Ferguson  v.  Bobo,  unnecessary  to  state  that  plaintiff 

54    Miss.    121    (1876);    Fleming    v.  is  a  judgment  creditor.    See  Taylor 

Crafton,  54  Miss.  79  (1876).  v.   Bowker,    111    U.    S.    110,   28    L. 

As    to    the    distinction    between  ed.  368   (1884)   interpreting  Maine 

this   class   of   cases   and   creditors'  statute. 

bills    to    set    aside    a    fraudulent  39.  See    cases    in    note    22,   ante, 

transfer,  see  note  30,  onte,  p.  171.  p.    169,   holding   that   variance  be- 

In  some  of  the  states  statutes  have  tween     allegations     and     proof     is 

removed   the    conditions   precedent  fatal. 


ORIGINAL  BILLS 


177 


tlie  plaintiff's  fault.^'^  And  in  a  bill  seeking  relief  on  the 
ground  of  mistake,  tlie  nature  of  the  mistake  relied  on 
must  clearly  appear  from  the  bill.^^  So  in  general  when 
any  act  should  be  done  by  a  plaintiff  as  a  condition  pre- 
cedent to  obtaining  relief,  he  must  allege  the  performance 
thereof,  except  in  some  cases  where  it  is  sufficient  if  he 
offers  in  his  bill  to  perform.  For  instance,  in  a  bill  to 
redeem  from  a  mortgage,  it  is  usually  necessary  that  the 
plaintiff  should  allege  that  he  has  previously  offered  to 
pay  the  amount  due,  although  it  is  sometimes  held  suf- 
ficient if  he  so  offers  in  his  bill.^-    A  mere  averment  of  a 


40.  Lancey  v.  Eancllett,  80  Me. 
176  (1888). 

41.  Illinois.  Arter  v.  Cairo 
Democrat   Co.,   72   111.   434    (1874). 

Maine.  Stover  v.  Poole,  67  Me. 
217  (1877);  Tucker  v.  Madden,  44 
Me.  216  (1857). 

Maryland.  Eeeder  v.  Lanahan, 
111  Md.  372  (1909). 

Pennsylvania.  Appeal  of  Hol- 
lenback,  121  Pa.  322  (1888). 

West  Virginia.  Batson  v.  Find- 
ley,  52  W.  Va.  343  (1902). 

United  States.  Willard  v.  Davis, 
122  Fed.  363  (C.  C.  1903);  Durham 
V.  Fire,  etc.,  Co.,  22  Fed.  468  (C.  C. 
1884). 

In  the  following  cases  the  alle- 
gations in  respect  to  mistake  were 
held  sufficient  on  demurrer.  Jacobs 
V.  Parodi,  50  Fla.  541  (1905);  Koch 
V.  Streuter,  218  111.  546,  2  L.  E.  A. 
210  (1905);  White  v.  Shaffer,  97 
Md.  359  (1903);  Chambliss  v.  Per- 
son, 77  Miss.  806  (1900);  Harding 
V.  Egin,  2  Tenn.  Ch.  39  (1874); 
Anderson  v.  Jarrett,  43  W.  A^a.  246 
(1897). 

42.  Maine.  Munro  v.  Barton,  95 
Me.  262  (1901);  Loggie  v.  Chand- 
ler, 95  Me.  220  (1901);  Kennebec, 
etc.,  E.  Co.  V.  Portland,  etc.,  E.  Co., 
54  Me.  173   (1866). 

Whitehouse  E.  P.  Vol.  1—12 


Massachusetts.  Way  v.  Mullett, 
143  Mass.  49  (1886). 

New  Hampshire.  Perry  v.  Carr, 
41  N.  H.  371   (1860). 

Pennsylvania.  Lanning  v.  Smith, 
1  Pars.  Eq.  Cas.  13  (Pa.  1841). 

Vermont.  Still  v.  Buzzell,  60  Vt. 
478  (1887);  Kopper  v.  Dyer,  59  Vt. 
477  (1887). 

West  Virginia.  Shanks  v.  Groff, 
45  W.  Va.  543   (1898). 

United  States.  Am.  Loan,  etc., 
Co.  V.  Atlantic  El.  E.  Co.,  99  Fed. 
313  (C.  C.  1899). 

Contra.  Illinois.  Barnard  v.  Cush- 
man,  35  111.  451  (1864);  Decker  v. 
Patton,  20  111.  App.  210   (1886). 

But  an  allegation  of  any  neglect 
or  default  of  the  defendant  which 
has  prevented  the  plaintiff  from 
tendering  will  excuse  the  omission 
of  an  averment  of  tender.  Doe  v. 
Littlefield,  99  Me.  317  (1904); 
Munro  v.  Barton,  95  Me.  262 
(1901);  Aust  V.  Eosenbloom,  74 
Miss.  893  (1897);  Kleuk  v.  Byrne. 
143  Fed.  1008   (C.  C.  1900). 

But  the  allegation  of  a  mere  de- 
nial by  the  defendant  of  the  plain- 
tiff's right  to  redeem,  without 
other  act  of  prevention,  will  not 
excuse  the  omission  to  allege  a 
formal  offer  to  pay.    Pease  v.  Ben- 


178 


EQUITY  PRACTICE 


previous  demand  for  an  account  is  insufficient.  So  in  all 
cases  where  the  relief  asked  of  the  defendant  will  neces- 
sarily involve  some  acts  to  be  done  by  the  plaintiff,  the 
bill  must  contain  an  offer  by  him  to  "do  equity."  ^^  Thus 
in  a  suit  for  specific  performance  the  bill  should  contain 
an  offer  to  pay  or  perfomi  whatever  the  bill  does  not  show 
has  already  been  paid  or  perfomied  of  those  matters 
which  may  be  required  to  entitle  the  plaintiff  to  the  spe- 
cific relief  he  seeks,  and  properly  also  an  allegation  of 
the  plaintiff's  ability  to  fulfill  his  offer.-^^    And  in  a  bill 


son,  28  Me.  336  (18-48);  contra, 
Edgerton  v.  McRea,  5  How.  (Miss.) 
183   (1840). 

An  allegation  merely  of  -n-illing- 
ness  to  pay  has  been  held  to  be 
insufficient.  Loggie  v.  Chandler,  95 
Me.  220  (1901).  But  an  offer  in 
the  bill  to  pay  into  court,  or  an  al- 
legation that  the  money  has  been 
paid  into  court,  is  sufficient. 
Franklin  v.  Ayer,  22  Fla.  654 
(1886);  Gordon  v.  Smith,  62  Fed. 
503,  10  C.  C.  A.  516,  23  U.  S.  App. 
451  (1894).  Or  an  offer  in  the 
bill  to  pay  what  is  due,  when  the 
bill  is  brought  after  condition 
broken  and  before  sale  of  the 
premises.  Way  v.  MuUett,  143 
Mass.  49  (1886).  Compare  Brown 
V.  Wentworth,  181  Mass.  49  (1902). 

In  a  bill  seeking  the  enforcement 
of  an  alleged  trust  by  establishing 
that  a  deed  absolute  in  form  was 
actually  given  as  a  mortgage,  no 
allegation  of  tender  or  demand  for 
an  account  is  necessary,  as  in  the 
case  of  formal  mortgages.  Cham- 
berlain V.  Lancey,  60  Me.  230 
(1872).  Xor  is  it  necessary  to  al- 
lege when  the  debt  was  due.  Pick- 
ett V.  Wadlow,  94  Md.  564  (1902). 

43.  It  has  been  said  that  the 
court  has  no  power  to  render  a  de- 
cree requiring  some  acts  to  be  done 


by  the  plaintiff,  unless  he  has  of- 
fered in  his  bill  to  do  equity. 
Marx  V.  Clisby,  130  Ala.  502 
(1900). 

Such  an  offer  is  not  a  mere 
formal  matter,  but  it  seems  that  its 
absence  may  be  raised  on  demurrer 
or  at  the  final  hearing,  and  the  bill 
will  be  dismissed  unless  the  plain- 
tiff amends  by  inserting  the  offer. 
Sloss-Sheffield,  etc.,  Co.  v.  Uni- 
versity, 130  Ala.  403  (1900);  Smith 
V.  Connor,  65  Ala.  371  (1880). 

Such  an  offer  is  equally  neces- 
sary in  a  cross  bill.  Am.  Freehold, 
etc.,  Co.  V.  Sewell,  92  Ala.  163 
(1890). 

44.  niinois.  DeWolf  v.  Pratt,  42 
111.  198  (1866). 

Maine.  Hubbard  v.  Johnson,  77 
Me.  139  (1885). 

Maryland.  Carswell  v.  Walsh, 
70  Md.  504   (1889). 

New  Hampshire.  Buffum  v.  Buf- 
fum,  11  X.  H.  451   (1841). 

New  Jersey.  Worch  v.  Wooil- 
ruff,  61  X.  .1.  E.  78  (1900). 

United  States.  Leicester  Piano 
Co.  V.  Front  Royal,  etc.,  Co.,  55 
Fed.  190,  5  C.  C.  A.  60,  8  U.  S. 
App.  374   (1893). 

An  allegation  that  the  plaintiff 
is  "ready,  eager  and  willing  to 
comply  with  the  terms  of  the  con- 


ORIGINAL  BILLS 


179 


for  rescission  of  a  contract,  tlie  plaintiff  must  offer  to 
return  any  property  received  and  not  shown  by  the  bill 
to  have  been  previously  surrendered,^^     On  the  other 


tract"  has  been  held  sufficient. 
Kissack  v.  Bourke,  22-±  111.  .352 
(1906).  So  of  an  allegation  that 
the  plaintiff  is  "ready,  willing  and 
able  to  pay  the  amount  due  or  to 
bring  the  same  into  court  to  be 
paid  to  the  defendant."  Fertilizer 
Co.  V.  Dunan,  91  Md.  144  (1900); 
Ewing  V.  Gordon,  49  N.  H.  444 
(1870). 

In  Cochran  v.  Scanlan,  34  Ga. 
555  (1866),  it  was  held  that  the 
allegations  in  a  bill  in  equity 
should  set  out  all  the  facts  neces- 
sary in  pleading  a  tender  at  law, 
but  this  seems  contrary  to  the 
cases  cited  above  in  the  note.  And 
see  Glos  v.  Goodrich,  175  111.  20 
(1898),  bill  to  remove  tax  due 
cloud  on  title. 

45.  Algood  V.  Bank  of  Piedmont, 
115  Ala.  418  (1896);  Eigdon  v. 
Walcott,  141  111.  649  (1892);  Chase 
V.  Hinkley,  74  Me.  181  (1882);  Bed- 
ier  V.  Reaume,  95  Mich.  518  (1893); 
Anderson  v.  Anderson  Food  Co.,  66 
N.  J.  E.  209  (1904);  Stuart  v.  Hay- 
den,  72  Fed.  402,  18  C.  C.  A.  18 
(1895).  Unless  it  is  shown  that 
part  of  the  property  has  been  sold 
under  pre-existing  lien,  Henninger 
v.  Heald,  51  N.  J.  E.  74  (1893);  or 
has  been  sold  before  discovery  of 
the  fraud.  Henninger  v.  Heald,  52 
N.  J.  E.  431   (1904). 

But  in  a  suit  to  cancel  a  fraudu- 
lent sale  of  real  estate,  it  has  been 
held  that  no  offer  to  return  the 
price  paid  need  be  made,  since  the 
court  may  require  this  return  in 
the  decree.  Thomas  v.  Beals,  154 
Mass.  51  (1891);  Thorpe  v.  Pack- 
ard, 73  N.  H.  235  (1905). 


Similarly  in  a  bill  seeking  relief 
against  a  usurious  contract,  the 
bill  should  contain  an  offer  to  pay 
the  amount  of  principal  with  legal 
interest.  American  Freehold  Land, 
etc.,  Co.  V.  Jefferson,  69  Miss.  770 
(1889);  Matthews  v,  Warner,  6 
Fed.  461  (C.  C.  1881).  But,  contra, 
under  statutes  which  make  void  the 
whole  of  a  transaction  tainted  with 
usury.  Long  v.  McGregor,  65  Miss. 
70  (1887). 

In  bills  for  an  accounting  an 
offer  to  pay  whatever  may  be 
found  due  against  the  plaintiff 
seems  to  be  implied.  Goldthwait 
V.  Day,  149  Mass.  185  (1889);  Hud- 
son V.  Barrett,  1  Pars.  Eq.  Cas. 
(Pa.)  414  (1850);  Hyre  v.  Lam- 
bert, 37  W.  Va.  26,  28   (1892). 

In  a  bill  to  remove  a  tax  sale 
cloud  on  title,  plaintiff  should  offer 
to  pay  all  taxes  paid  by  purchaser 
at  the  tax  sale.  Gage  v.  Pumpelly, 
115  U.  S.  4.54,  29  L.  ed.  449  (1885). 
Unless  it  is  alleged  that  no  taxes 
were  due.  Gage  v.  Kaufman,  133 
U.  S.  471,  33  L.  ed.  725  (1890). 
Or  that  the  tax  sale  was  wholly 
void.  Morrill  v.  Lovett,  95  Me. 
165  (1901);  Taylor  v.  Snyder, 
Walk.  Ch.  (Mich.)  490  (1844). 
And  see  Glos  v.  Goodrich,  175  111. 
20  (1898).  And  in  a  bill  to  re- 
strain a  tax  sale  when  part  of  the 
tax  assessed  was  illegal,  plaintiff 
should  offer  to  pay  that  part  of  the 
tax  which  was  legally  assessed. 
Connors  v.  Detroit,  41  Mich.  128 
(1879). 

In  a  bill  to  enforce  a  negotiable 
instrument  that  has  been  lost,  the 
plaintiff    should    offer    in    the    bill 


180 


EQUITY  PRACTICE 


hand,  if  the  statute  of  limitations  or  statute  of  frauds 
prima  facie  apply  to  the  plaintiff's  case,  his  bill  will  be 
demurrable  if  he  does  not  set  forth  facts  taking  his  case 
out  of  the  prima  facie  operation  of  these  statutes,^*^ — for 
instance,  concealment  by  the  defendant  in  the  case  of  the 
former  statute,^'  part  performance  of  the  oral  contract 
in  the  case  of  the  latter.^^ 

What  are  the  essential  facts  to  be  alleged  and  proved 
in  order  to  maintain  a  bill  and  obtain  relief  in  equity  is 
a  substantive  question  which  is  discussed  in  the  text 
books  on  equity  jurisprudence. 

§  93.  The  plaintiff  must  show  that  the  defendant  is  the 
person  against  whom  relief  is  justified.    The  same  pre- 

V.    Bryant, 


to  indemnify  the  defendant,  but 
need  not  tender  bond  with  the  bill. 
Exchange  Bank  v.  Morrall,  16  W. 
Va.  546  (1880). 

If  a  title  at  law  must  be  estab- 
lished-before  equitable  relief  will 
be  granted,  the  plaintiff  must  al- 
lege that  his  title  has  been  so  es- 
tablished. Am.  Bell  Tel.  Co.  v.  So. 
Tel.  Co.,  34  Fed.  803  (C.  C.  1888). 

46.  Statute  of  Limitations: 
Thames  v.  Mangum,  87  Miss.  575 
(1906);  Jones  v.  Rogers,  85  Miss. 
802  (1905);  Brown  v.  John  V.  Far- 
well  Co.,  74  Fed.  764  (C.  C.  1896) ; 
Phelps  V.  Elliott,  29  Fed.  33  (C.  C. 
1886). 

Statute  of  Frauds: 

Illinois.  Gary  v.  Newton,  201  111. 
170   (1903). 

Massachusetts.  Ahrend  v.  Odi- 
orne,  118  Mass.  261,  19  A.  R.  449 
(1875);  Slack  v.  Black,  109  Mass. 
496  (1872). 

New  Jersey.  Van  Dyne  v.  Vree- 
land,  11  X.  J.  E.  370   (1857). 

Pennsylvania.  Becker  v.  Patten, 
10  Pa.  Co.  Ct.  643   (1892). 

Tennessee.  Macey  v.  Childress, 
2  Tenn.  Ch.  438  (1875). 


Virginia.      Plunkett 
101  Va.  814   (1903). 

West  Virginia.  Reel  v.  Reel,  59 
W.  \a.  106  (1906);  Gallagher  v. 
Gallagher,  31  W.  Va.  9   (1888). 

United  States.  Randall  v.  How- 
ard, 2  Black  585,  17  L.  ed.  269 
(1862);  Young  v.  Wheeler,  34  Fed. 
98  (C.  C.  1888). 

Unless  it  clearly  appears  from  a 
bill  that  the  contract  declared  on 
was  oral,  the  court  will  on  demur- 
rer assume  that  it  was  written. 
Piedmont  Land,  etc.,  Co.  v.  Pied- 
mont Foundry,  96  Ala.  389  (1892); 
Fowler  v.  Fowler,  204  111.  82 
(1903);  Speyer  v.  Desjardins,  .144 
111.  641  (1892);  Dudley  v.  Batch- 
elder,  53  Me.  403  (1866) ;  Cranston 
V.  Smith,  6  R.  I.  231  (1859);  Cape- 
hart  V.  Hale,  6  W.  Va.  547  (1873). 

See  Chapter  XI,  Sec.  223,  note 
35,  post,  p.  401. 

47.  Edwards  v.  Gibbs,  39  Miss. 
166  (1860);  Livermore  v.  John- 
son, 27  Miss.  284  (1854). 

48.  White  v.  Poole,  73  X.  H.  403 
(1905);  Van  Dyne  v.  Vreeland,  11 
N.  J.  E.  370  (1857). 


OKIGINAL  BILLS  181 

cision  which  is  required  in  stating  the  case  of  the  plaintiff 
is  not  always  necessary  in  stating  the  defendant's  inter- 
est,^'' since  the  plaintiff  may  not  be  acquainted  with  the 
exact  nature  of  the  defendant's  interest.  The  bill  fre- 
quently proceeds  with  the  view  of  obtaining  that  infor- 
mation during  the  suit.  Every  bill,  however,  must  show 
that  the  defendant  has  an  interest  in  the  subject  matter 
and  is  in  some  way  liable  to  the  plaintiff's  demand,  other- 
wise the  bill  will  be  liable  to  demurrer.^^  Thus  in  a  suit 
brought  to  enforce  a  resulting  trust  in  land  against  the 
widow  and  infant  son  of  the  person  that  held  the  legal 
title,  the  bill  was  held  defective  since  it  did  not  allege  that 
the  deceased  died  seized  of  the  trust,  or  that  the  defendant 
had  or  claimed  to  have  any  title  to  the  premises  in 
question. ^^  So  in  a  bill  brought  against  a  railroad  cor- 
poration in  possession  to  redeem  the  railroad  from  a  mort- 
gage, the  bill  must  allege  that  the  defendant  corporation 
holds  the  property  or  has  some  title  under  the  mortgage.^- 
Where  the  bill  founds  the  plaintiff's  rights  against  the 
defendant  upon  the  latter 's  having  notice,  notice  should 
be  distinctly  charged,  otherwise  it  is  not  a  matter  in  issue 
on  which  the  court  can  act.-^^    So  when  estoppel  is  relied 

49.  Thompson  v.  Morris,  57  111.  52.  Kennebec,  etc.,  E.  Co.  v. 
333  (1870);  Eogers  v.  Ward,  8  Portland,  etc.,  E.  Co.,  54  Me.  173 
Allen  (Mass.)  387  (1864).  (1866). 

50.  That  is,  a  defendant  may  de-  53.  Davis  v.  Eogers,  33  Me.  222 

mur  for  his   own  misjoinder.     See  (1851);     Molony    v.     Eourke,     100 

§77,   note   33,  <ante,  p.   155,  where  Mass.     190     (1898);     Gilkerson    v. 

such  demurrers  were  sustained.    So  Thompson,  210  Pa.  S.  355  (1904). 

also   a    decree    is    of   no    effect    as  ^^ile   it   is   the  better  practice 

against  a  defendant  summoned  in  ^^  ^^^^^  ^^^^  subsequent  purchas- 

during   the   litigation,  but   not   al-  „  .  i.        i       •.. 

"       .  ,,         .         .       ,  ^rs   tor   value   purchased   with    no- 

luded  to  m  the  allegations  m  the        .         „      .       ,  ■-,,■-,-, 

,  .„      ^r  ^  All         1/.  TTT    -ir  tice  or  mistake  or  accident  m  deeds 

bill.     McCoy  V.   Allen,   16    W.  Va. 

724  nssO'i  under  which  their  grantor  derived 

The   relief   must   be   confined    to  t^t^e,    yet    it    has    been    held    that 

the  title  or  interest  alleged  to  be  ^ant    of   such    allegation    was    not 

in  the  defendant.    Scott  v.  Gamble,  ground  for  demurrer,  for  the  reason 

9  N.  J.  E.  218   (1852).  that   the   fact   of   a   bona   fide   pur- 

51.  Perry  v.  Perry,  65  Me.  399  chase  for  value  without  notice  of 
(1876),  and  see  Smith  v.  Ganby,  outstanding  equities,  either  actual 
43  Fla.  142  (1901).  or  constructive,  is  purely  matter  of 


182  EQUITY  PRACTICE 

upon,  it  must  be  alleged  or  it  cannot  be  proved.^^  Further, 
if  an  admission  is  made  in  the  answer  it  will  be  of  no  use 
to  the  plaintiff  unless  it  was  put  in  issue  by  some  charge 
in  the  bill.^^ 

§  94.  The  bill  must  show  privity  between  plaintiff  and 
defendant.  Moreover  the  bill  must  not  only  show  such 
interest  and  liability  on  the  part  of  the  defendant,  but 
must  also  show  that  there  is  such  privity  between  him  and 
the  plaintiff  as  gives  the  latter  a  right  to  sue  him.  Thus 
although  a  principal  is  entitled  to  an  account  against  his 
agent,  the  persons  for  whom  the  principal  is  a  trustee  are 
not  so  entitled,  and  were  a  suit  instituted  by  them  against 
the  trustee  and  his  agent  for  an  account,  a  demurrer  by 
the  agent  would  be  allowed/'*' 

§  95.  How  the  bill  should  state  the  case — In  general. 
Having  thus  shown  briefly  what  are  the  fundamental  req- 
uisites of  the  stating  part,  the  next  question  is  how  those 
allegations  should  be  framed  and  stated.  The  statutes  or 
chancery  rules  usually  require  that  tlie  bill  of  complaint 
shall  state  the  material  facts  and  circumstances  relied  on 
by  the  plaintiff  with  brevity  and  conciseness,  omitting 
immaterial  and  irrelevant  matters.^'''    In  many  of  these 

defence  to  be  set  up  by  such  pur-  Sec.    264,    citing    Gresley    on    Evi- 

chasers  by  plea  or  answer  whether  dence  23;  Savage  v.  Lane,  6  Hare 

or  not  notice  to  them  is  charged  in  32.     But  see  Eichardson  v.   Green, 

the  bill.     Snyder  v.  Grandstaff,  96  61  Fed.  431  (C.  C.  A.  1894). 
Va.    473,    70     Am.    St.     Eep.    863  56.  Daniell's    Ch.    Pr.    (6th    Am. 

(1898).  ed.)    p.    323,    citing    Atty.    Gen.    v. 

54.  Morgan  v.  Palmer,  13  Mich.  Earl  of  Chesterfield,  18  Beav.  596, 
367    (1865);    Newport   Cotton   Mill  18  .Jur.   686;    Maw   v.   Pearson,   28 
Co.  V.  Mims,  103  Tenn.  465  (1899);  Beav.  196,  Seton  463,  790. 
Eipton    V.    McQuivey's    Admr.,    61  57.  Alabama,    Code,    Sec.    3094; 
Vt.  76  (1889).  Delaware,  Eq.  Eule  21;  Florida,  Eq. 

In    Virginia    Iron,    etc.,    Co.    v.  Eule  19;  Maine,  Eq.  Eule  4;  Mary- 

Eoberts,    103    Va.    661     (1905),    it  land,  Code,  S^es.  144,  146,  Eq.  Eule 

was   held    on    demurrer   that   there  13,    15;    Massachusetts,    E.    L.    Ch. 

were     sufficient     facts     alleged     to  159,  Sec.  12;  Michigan,  Eq.  Eule  1; 

show  that  the  defendants  were  ps-  Mississippi,    Code,    Sec.    578;    New 

topped  to  set  up  a  certain  defence.  Hampshire,  Eq.  Eule  82;  New  Jer- 

55.  Story's    Eq.    PI.     (10th    ed.)  sey,  Eq.  Eule  49;  Pennsylvania,  Eq. 


ORIGINAL  BILLS  183 

jurisdictions  the  rules  require  bills  to  be  drawn  in  para- 
graphs, numbered  seriatim,^^  and  in  the  jurisdictions 
where  this  is  not  expressly  required,  the  practice  should 
be  the  same.  A  general  rule  covering  the  terms  usually 
emjDloyed  in  stating  the  qualifications  required,  may  be 
framed  as  follows:  affirmatively,  the  stating  part  of  a 
bill  must  be  certain,  precise,  positive,  clear,  succinct  and 
brief  and  yet  complete;  while  negatively,  it  must  not  be 
prolix,  redundant,  irrelevant,  immaterial,  impertinent, 
scandalous  or  multifarious. 

All  these  adjectives  may  be  reduced  to  three  main  heads, 
viz.:  certainty,  impertinence  and  scandal,  and  multifari- 
ousness. 

§  96.  — Certainty.  Under  the  head  of  certainty  is  prop- 
erly included  all  the  affirmative  qualifications  of  precision, 
positiveness,  brevity,  clearness  and  completeness,  and  the 
amount  of  certainty  required  is  certainty  to  a  common 
intent.-^*^    Although  the  same  precision  of  statement  is  not 

Eules    15,    17;    Ehode    Island,    Eq.  paragraph   but   each   paragraph   so 

Eule     12;     Tennessee,     Code,     See.  far  as  possible  should  contain  but 

6124;  Vermont,  Eq.  Eules  2,  42.  one   of   the   links   in  the   chain   of 

In  Florida,  Maryland,  New  events. 
Hampshire,  New  Jersey,  Pennsyl-  In  Alabama  a  bill  with  blank 
vania,  Ehode  Island,  and  Vermont,  spaces  in  the  stating  part  is  de- 
the  rules  above  cited  contain  spe-  fective.  Eq.  Eule  10. 
cial  prohibitions  against  reciting  In  Michigan,  a  bill  not  comply- 
in  the  bill  deeds  or  documents  at  ing  with  the  rule  as  to  paragraphs 
length.  may  be  stricken  from  the  files  un- 

58.  Alabama,  Eq.   Eule   8;   Dela-  less     amended     with     leave.       Eq. 

ware,  Eq.  Eule  21;  Maine,  Eq.  Eule  Eule  1. 

4;  Michigan,  Eq.  Eule  1;  Pennsyl-  59.  In  addition   to  the  examples 

vania,  Eq.  Eule  17;  Ehode  Island,  given   in   the   footnotes   under   the 

G.  L.  Ch.  289,  Sec.  24.  next   sections  of  the  text,  see  the 

Each  paragraph  should  be  so  following  cases  where  the  objection 
framed  as  to  comprise  but  one  of  was  successfully  raised  that  the 
the  leading  points  or  steps  in  the  bill  lacked  certainty  in  its  state- 
story  together  with  such  minor  ment  of  the  essential  facts  in  the 
facts     as     are     closely     connected  case. 

therewith    and    necessary    to    sub-  Florida.     Durham  v.  Edwards,  50 

stantiate    such    point,    or   in    other  Fla.  495  (1905) ;  Bridges  v.  Thrasli- 

words,     distinct     facts     or     events  er,  22  Fla.  383  (1886). 

should  not  be  joined  in  the  same  Illinois.      Sandifer    v.    Sandifer, 


184 


EQUITY  PRACTICE 


required  in  bills  in  equity  as  in  pleadings  at  law,*'"  yet  it  is 
necessary  that  such  a  degree  of  certainty  should  be 
adopted  as  will  give  the  defendant  sufficient  and  unmis- 
takable information  of  the  case  which  he  is  required  to 
answer.  Perhaps  the  simplest  and  most  practical  rule  to 
be  given  on  the  subject  is,  that  the  pleader  should  draw 
his  bill  as  if  he  were  making  a  short  but  very  accurate 
statement  of  his  case  to  a  very  precise  and  particular 
person.^  ^ 


229  111.  523  (1907);  Coon  v.  Hatiz, 
139  111.  App.  472  (1908). 

Maryland.  Euler  v.  Schroeder, 
112  Md.  155  (1910);  Guyton  v. 
Flack,  7  Md.  398  (1855). 

Massachusetts.  Amy  v.  Manning, 
149  Mass.  487   (1889). 

Michigan.  Aldrich  v.  Chair  Co., 
152  Mieh.  369   (1908). 

Mississippi.  Perkins  v.  Sanders, 
56  Miss.  733  (1879);  Smith  v.  Gill, 
52  Miss.  607  (1876);  Carter  v.  Ly- 
man, 33  Miss.  171   (1857). 

New  Hampshire.  Rice  v.  Mer- 
rimack, etc.,  Co.,  56  N.  H.  114 
(1875);  Perry  v.  Carr,  41  N.  H. 
371    (1860). 

New  Jersey.  Muller  v.  Muller, 
76  N.  J.  E.  158  (1909);  Brokaw  v. 
Brokaw,  41  X.  J.  E.  215  (1886). 

Pennsylvania.  Delaware,  etc., 
Canal  Co.  v.  Penn.  Coal  Co.,  21  Pa. 
131   (1853). 

United  States.  St.  Louis  v. 
Knapp  Co.,  104  U.  S.  661,  26  L.  ed. 
883  (1881);  Electric  Goods,  etc., 
Co.  V.  Koltonski,  171  Fed.  550  (C. 
C.  1909) ;  Savage  v.  Worsham,  104 
Fed.  18  (C.  C.  1892). 

Material  facts  are  insufficiently 
alleged  when  stated  merely  by  in- 
ference. Maryl  v.  Root,  27  Fla. 
453  (1891);  Perry  v.  Perry,  65  Me. 
399   (1875);  Kunkel  v.  Markell,  26 


Md.  390  (1866);  Stoddard  v.  Mc- 
Lane,  56  Mich.  11   (1885). 

But  an  allegation  that  a  deed 
was  made  "with  intent  to  de- 
fraud" is  sufficient  to  state  that 
it  was  a  deed  which  was  in  actual 
fraud  of  creditors.  Riley  v.  Carter, 
76  Md.  581  (1893).  And  an  allega- 
tion that  land  taken  by  a  railway 
was  "necessary"  is  equivalent  to 
an  allegation  that  after  being 
taken  it  was  used  for  the  railway. 
Marquette,  etc.,  R.  Co.  v.  Mar- 
quette, 35  Mich.  504  (1877).  An 
allegation  that  a  bond  was  duly 
approved  does  not  require  a  fur- 
ther allegation  that  a  hearing  was 
first  had,  as  the  law  required. 
O'Hare  v.  Downing,  130  Mass.  16 
(1880). 

A  specific  statement  of  facts  in 
an  affidavit  annexed  to  the  bill 
will  not  aid  uncertain  allegations 
of  those  facts  in  the  body  of  the 
bill.  Chapman  v.  Hunt,  14  N.  J.  E. 
149   (1861). 

On  general  demurrer,  facts  may 
be  held  to  be  set  forth  with  suffi- 
cient certainty  though  set  up  as  a 
charge  instead  of  as  an  allegation. 
Johnson  v.  Helmstaedter,  30  X.  .7. 
E.  124  (1878). 

60.  Colgate  v.  James  T.  White 
Co.,  180  Fed.  882  (C.  C.  1910). 

61.  Heard's  Eq.  PI.  p.  29. 


ORIGINAL  BILLS 


185 


§  97.  — Certainty  in  stating-  title.  As  to  the  manner  of 
pleading  title,  the  general  rule  is  that  the  plaintiff  must 
allege  facts  and  not  mere  inferences  of  law.  He  should 
allege  those  facts  or  the  substance  of  those  instruments 
from  which  the  court  can  ascertain  that  he  possesses  title, 
and  not  the  bare  statement  that  he  has  such  title.  The 
bill  will  be  open  to  demurrer  unless  it  alleges  every  fact 
essential  to  establish  the  plaintiff's  title.^-     It  has  been 


62.  Alabama.  Overton  v.  Mose- 
ley,  135  Ala.  599  (1902);  Long  v. 
King,  117  Ala.  423  (1897);  Eapier 
V.  Gulf,  etc.,  Co.,  64  Ala.  330 
(1879). 

Florida.  Smith  v.  Ganby,  43  Fla. 
142  (1901);  Key  West  Bank  v.  Na- 
varre, 22  Fla.  474  (1886). 

lUinois.  Miller  v.  Stalker,  158 
111.  514  (1895);  Ashmore  v.  Skene 
Lead  Co.,  150  111.  App.  381   (1909). 

Maine.  Kennebec,  etc.,  R.  Co.  v. 
Portland,  etc.,  R.  Co.,  54  Me.  173 
(1886). 

Maryland.  Stinson  v.  Ellicott, 
etc.,  Co.,  109  Md.  Ill  (1908). 

Michigan.  Steele  v.  Hess,  112 
Mich.  678  (1897). 

New  Jersey.  Phillips  v. 
Schooley,  27  N.  J.  E.  410  (1876). 

Rhode  Island.  Wilson  v.  Wil- 
son, 25  R.  L  446  (1903). 

Tennessee.  McClung  v.  Sneed, 
3  Head  (Tenn.)  218  (1859). 

Virginia.  Saunders  v.  Baltimore, 
etc.,  Assn.,  99  Va.  140  (1901). 

United  States.  Caesar  v.  Capell, 
83' Fed.  403  (C.  C.  1897). 

A  general  allegation  of  title  is 
sufficient  when  only  personal  prop- 
erty is  in  question.  Berry  v.  Fried- 
man, 192  Mass.  131  (1906);  Strick- 
land V.  Fitzgerald,  7  Cush.  (Mass.) 
530  (1851);  Pryor  v.  Gray,  70  N. 
J.  E.  413  (1905).  And  so  as  to  real 
estate,    as    against    a    general    de- 


murrer, at  least  when  the  bill  is 
against  a  person  claiming  no  ad- 
verse right  or  title.  Salisbury  v. 
Miller,  14  Mich.  160  (1866);  Winn. 
Lake  Co.  v.  Young,  40  N.  H.  420 
(1860);  Webber  v.  Gage,  39  N.  H. 
182  (1854);  Wilson  v.  Hill,  46  N. 
J.  E,  367  (1890) ;  Durham  v.  Eaton, 
etc.,  R.  Co.,  F.  C.  4,150,  1  Bond 
492  (C,  C.  1861). 

In  such  cases  the  courts  have 
sometimes  held  averments  satisfac- 
tory from  which  the  plaintiff's  title 
might  be  fairly  inferred.  Stewart 
v.  Flint,  57  Vt.  216  (1884). 

But  where  the  title  of  real  estate 
is  in  question,  and  as  against  a 
claim  of  adverse  title  by  the  de- 
fendant, the  plaintiff  should  show 
the  nature  or  source  of  his  title  in 
some  detail.  Miller  v.  Stalker,  158 
111.  514  (1895). 

Where  a  bill  sets  forth  the  terms 
of  an  instrument  so  as  to  show  title 
in  the  plaintiff,  it  will  not  be  pre- 
sumed that  there  were  other  pro- 
visions in  the  instrument  defeating 
such  title.  Cavender  v.  Cavender, 
114  U.  S.  464,  29  L.  ed.  212  (18S5). 

A  plaintiff  claiming  under  an  as- 
signment must  set  forth  facts 
showing  the  assignor's  title  and 
that  the  assignment  was  perfected. 
Bogan  V.  Camp,  30  Ala.  276  (1857); 
Perley  v.  Dole,  38  Me.  558  (1854); 
Huneman     v.     Lowell     Instn.,     205 


186  EQUITY  PRACTICE 

said  to  be  sufficient  when  alleging  a  simple  title  in  fee  to 
say  merely  that  the  plaintiff  is  the  owner  or  is  well  enti- 
tled to  certain  property  '^^  but  it  is  better  pleading  in  stat- 
ing a  legal  title  to  follow  the  phraseology  employed  at 
common  law,  and  say  that  **the  plaintiff  is  seized  in  fee," 
or  ' '  seized  in  fee  simple, "  or  in  the  case  of  a  term  of  years, 
that  he  "is  possessed."  ^^  So  in  the  case  of  a  mortgage 
(in  a  bill  for  redemption,  for  instance),  something  more 
should  be  set  out  than  that  the  plaintiff  mortgaged  the 
premises  to  the  defendant  for  a  certain  sum.  The  bill 
should  state  for  example  that  the  plaintiff  "being  seized 
in  fee  simple,"  of  a  certain  farm  did  on  such  a  date  grant 
and  convey  said  farm  to  the  defendant,  his  heirs  and 
assigns,  on  the  condition  that,  etc.,  setting  out  the  sub- 
stance of  the  conditional  clause.^^  It  is  not  necessary, 
however,  to  allege  that  the  instrument  of  title  has  been 
acknowledged  and  recorded.*^^ 

So  in  a  suit  by  a  cestui  que  trust  it  is  not  sufficient  to 

Mass.  441  (1910);  Thayer  v.  Pres-  deed  sealed  with  his  seal  (date  and 

sey,    175    Mass.    225    (1900);    Car-  consideration  stated)  conveyed  and 

penter  v.  Talbot,  33  Fed.  537  (C.  C.  assigned    to    the    plaintiff    all    his 

1888).       See     also     Goldengay     v.  right,  title  and  interest  in  the  same 

Smith,  62  N,  J.  E.  354  (1901).  together    with    the    debt     secured 

But  an  allegation  that  an  assign-  thereby  and  all  his  claims  in  and 

ment  to  the  plaintiff  was  made  on  to    the    mortgage;    all    which    will 

a  certain  date  is  sufficient,  without  more  fully  appear  by  said  deed  and 

alleging  that  it  was  acknowledged  assignment      when      produced      in 

and   recorded.     Lovell   v.  Earring-  court,"   it   was   held   on   demurrer 

ton,  50  Me.  239  (1863).  that  the  allegations  were  sufficient 

63.  Heard's  Eq.  Precedents,  pp.  to  allow  proof  of  acknowledge- 
88,  144,  159.  ment    and    record    although    these 

64.  Daniell's  Ch.  Pr.  (6th  Am.  facts  were  not  alleged  in  the  bill, 
ed.)  pp.  362,  1895  and  1942;  Lovell  v.  Farrington,  50  Me.  239, 
Heard's     Eq.     Precedents,    p.     60;  (1863). 

Heard's  Eq.  PI.  p.  77  and  note  and  And  it  is  unnecessary  to   allege 

p.  134.  that  the  deed  was  delivered.   Whit- 

65.  Daniell's  Ch.  Pr.  (6th  Am.  ten  v.  Whitten,  36  N.  H.  326 
ed.)  p.  1926.  (1858). 

66.  Thus  in  alleging  a  title  by  An  allegation  that  a  deed  "did 
assignment  of  a  mortgage  where  convey  her  interest"  is  sufficient, 
the  bill  stated  that  a  mortgagee  ' '  by  Christian  v.  Am.  Freehold,  etc.,  Co., 
his   assignment   in  writing  of  said  92   Ala.   130    (1891). 


ORIGINAL  BILLS  187 

allege  that  the  plaintiff  is  entitled  to  an  equitable  interest 
under  the  deed  of  trust,  or  that  the  defendant  is  trustee 
for  the  plaintiff,  but  the  bill  should  set  out  the  substance 
of  such  a  portion  of  the  deed  as  shows  that  the  plaintiff 
takes  under  it  an  equitable  interest.*^^  Likewise  it  is  not 
sufficient  to  allege  merely  that  a  conveyance  of  land  by 
a  deed  from  a  third  person  to  the  defendant  was  held  by 
the  latter  in  trust  for  the  plaintiff.  It  should  so  appear 
from  the  express  terms  of  the  deed,  if  an  express  trust, 
or  if  an  implied  trust  such  facts  should  be  stated  as 
would  clearly  show  it  to  be  so  made.^^ 

An  assertion  of  title  should  never  be  made  in  the  alter- 
native.^^ So  an  allegation  that  H.  ''being  or  claiming 
to  be  seized  or  otherwise  well  entitled  in  fee  simple," 
etc.,  has  been  said  to  be  defective.'^'^ 

Having  tlius  stated  the  necessary  facts  in  support  of 
title,  however,  it  is  often  useful  to  follow  them  up  with 
a  general  allegation  of  the  title  in  order  to  bring  out  more 
clearly  the  purport  of  the  preceding  allegations.  Thus  in 
a  bill  filed  by  an  executor  after  alleging  the  will  and  his 
appointment  therein  and  the  death  of  the  testator,  the 
proof  of  the  will  and  his  qualifications  thereunder,  he 
should  conclude  that  he  ''thereby  became  and  now  is  the 
sole  legal  personal  representative"  of  the  testator.'''^ 

§  98.  Written  instruments  and  exhibits.  On  the  other 
hand,  although  specific  facts  should  be  stated  rather  than 

67.  Heard's  Eq.  PI.,  pp.  26  and  70.  Story's  Eq.  PI.  (10th  ed.), 
27;  Drewry's  Eq.  PI.  10;  Daniell's  Sec.  245a;  Daniell's  Ch.  Pr.  (6th 
Ch.    Pr.     (6th    Am.    ed.),    p.    369,       Am.  ed.),  p.   362. 

citing  Jackson  v.  North  Wales   E.  But  this  form  "  or  otherwise  well 

Co.,  13  Jur.  69;  Steedman  V.  Marsh,  entitled"    is    frequently    found    in 

2  Jur,  N.  S.  391.  the  precedents.     See  precedents  in 

68.  Smith  v.  Ganby,  43  Fla.  142  Daniell's  Ch.  Pr.  (6th  Am.  ed.), 
(1901);  Eowell  v.  Freese,  23  Me.  vol.  3,  p.  1,919;  Equity  Draughts- 
1S2  (1843).  man,  p.  23,  p.  350;   Curtis  Eq.  Pr. 

69.  Edwards  v.  Edwards,  1  Jac.  p.  13;  Eobinson  v.  Eobinson,  73 
335   (Eng,  1826);  Spears  v.  Cheat-  Me.  170   (1882). 

ham,  44  Miss.  64  (1870);  Bynum  v.  71.  Heard's  Eq.  PI.  p.  27. 

Ewart,  90  Tenn.  655   (1891). 


188 


EQUITY  PRACTICE 


conclusions  therefrom,  it  is  not  proper,  as  a  general  rule, 
to  set  out  deeds  or  other  instruments  in  a  bill,  in  liaec 
verba.  Only  the  substance  of  the  instruments  or  of  such 
portions  as  are  material  should  be  stated."-  AVhere  enough 
of  the  substance  is  thus  stated  clearly  and  explicitly  to 
show  title  on  the  face  of  the  bill,  it  will  be  sufficient  on 
demurrer  without  referring  to  or  filing  any  exhibits  in 
the  case."-'^  Good  pleading  requires  that  everything  which 
is  material  to  the  case  should  be  set  forth  in  the  allega- 
tions of  the  bill  itself.  If  the  pleader  desires  he  may  also 
refer  to  exhibits  for  greater  certainty  as  to  details.  But 
the  use  of  exhibits  is  as  a  general  rule  mere  matter  of 
indulgence  and  the  bill  itself  should  always  contain  the 
substance  of  the  case.'^^  Where,  however,  the  precise 
wording  of  an  instrument  is  in  question,  the  plaintiff 
should  then  set  out  the  instalment  or  such  portion  thereof 
as  is  material  in  haec  verba,''^  or  else  refer  to  it  and  file 


72.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  266;  Daniell's  Ch.  Pr.  (6th 
Am.  ed.),  pp.  368-9.  See  Eamsey  v. 
Temple,  3  Lea  (Tenn.)  252  (1879); 
Board  of  Trade  v.  National  Board 
of  Trade,  154  Fed.  238  (C.  C.  1907). 

See  the  chancery  rules  of  vari- 
ous states  as  cited  in  note  57,  ante, 
p.  182. 

73.  Didier  v.  Merryman,  114  Md. 
434  (1911);  Suit  v.  Hochsletter  Oil 
Co.,  63  W.  Va.  317  (1908);  Dan- 
iell's Ch.  Pr.  (6th  Am.  ed.),  p. 
1,904;  Heard's' Eq.  pp.  63-67,  71, 
81,  94,  97. 

So  of  a  plea.  Edison  El.  Light 
Co.  V.  U.  S.,  etc.,  Co.,  35  Fed.  134 
(C.  C.  1888). 

74.  Harvey  v.  Kelley,  41  Miss. 
490,  493  (1867);  Camden,  etc.,  R. 
Co.  V.  Stewart,  19  N.  J.  E.  343 
(1868);  Leitz  v.  Lafayette  Trac- 
tion Co.,  5  Pa.  Co.  Ct.  469  (1888) ; 


Electrolibation  Co.  v.  Jackson,  52 
Fed.  773   (C.  C.  1892). 

But  insufficient  averments  may 
sometimes  be  aided  by  exhibits  an- 
nexed to  the  bill.  Piedmont,  etc., 
Co.  V.  Piedmont  Foundry,  96  Ala. 
389  (1892);  Hill  v.  Meinhard,  39 
Fla.  Ill  (1897). 

But  if  the  allegations  of  the  bill 
disclose  documents  which  should  be 
exhibited  and  are  not,  the  bill 
should  allege  the  reason  for  not 
filing  or  annexing  them.  Stinson 
V.  Ellicott,  etc.,  Co.,  109  Md.  Ill 
(1908);  Haight  v.  Burr,  19  Md. 
130  (1862).  See  also  Didier  v. 
Merryman,  114  Md.  434  (1911). 

75.  This  is  usually  the  case  in 
claiming  relief  under  written  in- 
struments which  are  not  free  from 
ambiguity,  and  in  such  cases  it  is 
proper  and  necessary  to  set  out  the 
instrument    in   full,   together   with 


ORIGINAL  BILLS 


189 


or  annex  the  original  or  a  copy  thereof  as  an  exhibit."*^ 
There  are  three  ways  of  referring  to  written  instru- 
ments and  employing  them  as  exhibits.  First:  It  is  a 
common  practice  after  stating  the  date  and  substance  of 
a  deed  or  other  written  instrument  to  refer  to  the  instru- 
ment itself  in  the  following  words,  ''as  will  more  fully 
appear  by  said  instrument  (or  by  a  certified  copy  of  said 
instrument)  to  which  the  plaintiff  asks  leave  to  refer 
when  produced  in  court. ' '  '^'^  The  effect  of  such  a  refer- 
ence is  to  make  the  whole  document  referred  to,  part  of 
the  record  and  to  enable  the  defendant  to  rely  at  the  hear- 
ing (though  not  it  would  seem  on  demurrer)'^  upon  any 
part  of  the  instrument  which  may  not  be  inserted  in  the 
bill  or  which  may  be  inaccurately  set  out.'^^ 


the  construction  or  interpretation 
relied  upon  by  the  plaintiff.  See 
Einstein  v.  Schnebly,  89  Fed.  540 
(C.  C.  1898);  Daniell's  Ch.  Pr. 
(6th  Am.  ed.),  p.  369. 

So  also  where  the  equity  of  a 
bill  rests  on  the  precise  wording 
of  a  clause  in  a  will  which  is  al- 
leged to  have  conveyed  a  title. 
Goldsby  v.  Goldsby,  67  Ala.  560 
(1880). 

76.  Nagengast  v.  Alz,  93  Md. 
522  (1901);  Clark  v.  Lee,  185  Mass. 
223   (1904). 

Thus  in  a  bill  for  the  construc- 
tion of  a  will  the  approved  prac- 
tice in  the  state  of  Maine  is  to 
annex  the  will  as  an  exhibit. 

77.  Daniell's  Ch.  Pr.  (6th  Am. 
ed.),  pp.  1,889,  1,904,  1,909,  1,911, 
1,926,  1,962;  Heard's  Eq.  p.  92. 

78.  It  has  been  held  that  on  de- 
murrer a  document  referred  to  in 
the  bill  and  not  made  a  part  there- 
of, or  at  least  filed  with  it,  is  not 
available  either  to  assist  or  to  con- 
travert  the  allegations  of  the  bill. 
Hastings  v.  Belden,  55  Vt.  273 
(1883),  semble;  Pac.  E.  Co.  v.  Mo. 


Pac.  E.  Co.,  Ill  U.  S.  505,  28  L. 
ed.  498  (1883);  Harmer  v.  Gooding, 
3  DeG.  &  S.  411  (Eng.  1849). 

But  at  least  where  the  exhibit  is 
filed  with  the  bill,  it  is  available 
as  a  part  thereof  on  demurrer. 
Moore  v.  Titman,  33  111.  358  (1864) ; 
Mississippi  Code,  Sec.  579;  Hast- 
ings V.  Belden,  55  Vt.  273  (1883); 
Johnson  v.  Anderson,  76  Va.  76 
(1882);  Sadler  v.  Taylor,  49  W. 
Va.  104  (1901).  And  in  Am.  Bell 
Tel.  Co.  v.  So.  Tel.  Co.,  34  Fed. 
803  (C.  C.  1888),  it  was  held  that 
merely  a  reference  to  a  recorded 
instrument,  asking  leave  to  refer 
it  when  produced,  is  equivalent  to 
annexing  a  copy;  and  so  in  Fich- 
tel  V.  Barthel,  173  Fed.  489  (C.  C. 
1909),  and  in  Bogart  v.  Hinds,  25 
Fed.  484  (C.  C.  1885),  defects  in 
a  recorded  document  thus  referred 
to  were  taken  advantage  of  on  de- 
murrer. The  last  three  cases  were, 
however,  patent  cases. 

79.  Swetland  v.  Swetland,  3 
Mich.  482  (1855);  Pauncefort  v. 
Lord  Lincoln,  1  Dick.  362  (Eng. 
1763).     Or   to  enable  the  plaintiff 


190 


EQUITY  PRACTICE 


Second :  The  pleader  may  if  he  prefers,  after  setting  out 
the  substance  of  the  instrument  as  above,  refer  to  it  in  the 
following  words :  "  as  will  more  fully  appear  by  the  terms 
of  said  instrument  a  copy  of  which,  marked  'exhibit  A'  is 
filed  in  court  herewith  and  made  a  part  of  this  bill. ' '  **^ 

Third :  The  most  approved  method  in  modern  practice 
of  referring  to  a  written  instrument  and  employing  it  as 
an  exhibit  is,  after  stating  its  general  purport  as  above,  to 
add  the  words,  ''as  will  more  fully  appear  from  the  tenns 
of  said  instrument  a  copy  of  which,  marked  'exhibit  A' 
is  hereto  annexed  and  made  a  part  of  this  bill."  '^^ 


to  prove  without  amendment  or 
supplemental  bill  items  shown  by 
the  document.  Loewenstein  v. 
Eapp,  67  111.  App.  67S  (1S97).  Such 
reference  does  not,  however,  make 
the  document  evidence.  It  still 
must  be  proved  in  the  usual  way. 

80.  In  Tennessee,  it  seems  that 
such  exhibits  need  not  in  all  cases 
be  filed  with  the  bill,  but  may  be 
filed  later.  Carter  v.  Chattanooga, 
48  S.  W.  117  (Tenn.  1S97). 

81.  The  advantage  of  this  meth- 
od over  the  first  and  second  is  that 
the  exhibit  becomes  unquestionably 
a  part  of  the  bill,  on  demurrer  and 
for  all  purposes,  and  is  handy  for 
reference,  while  the  continuity  of 
the  pleader's  statement  is  not  in- 
terrupted as  it  would  be  by  the  in- 
corporation of  the  exhibit  into  the 
body  of  the  bill.  The  second 
method  is  sometimes  more  con- 
venient, however,  where  the  ex- 
hibit is  bulky  and  cumbersome. 
Voluminous  records  should  not  be 
made  exhibits,  but  the  facts  relied 
on  should  be  abstracted.  See  Ram- 
sey V.  Temple,  3  Lea  (Tenn.)  252 
(1879). 

Such  exhibits  are,  of  course,  as 
much  a  part  of  the  bill  as  if  in- 
corporated into  the  body  thereof. 


Rule  16;  Hagan 
209  (Ala.  1914); 
Co.    V.    Piedmont 

389   (1892). 

V.    Meinhard,    39 


Alabama.     Eq. 

V.  Scott,  65  So. 
Piedmont  Land 
Foundry,  96  Ala 

Florida.      Hill 
Fla.  Ill   (1897). 

Illinois.  Fowler  v.  Fowler,  204 
111.  82  (1903);  Moore  v.  Titman, 
33  111.  338  (1864). 

Mississippi.  Carpenter  v.  Doug- 
lass, 61  So.  161  (Miss.  1913). 

New  Jersey.  McMaster  v.  Drew, 
77  X.  J.  E.  270   (1908-1910). 

Vermont.  Hastings  v.  Belden, 
55  Vt.  273   (1883). 

Virginia.  Johnson  v.  Anderson, 
76  Va.  76  (1882). 

West  Virginia.  Grant  v.  Cement 
Co.,  58  W.  Va.  162  (1905);  Sadler 
v.  Taylor,  49  W.  Va.  104  (1901). 

And  where  the  exhibits  are  in- 
consistent with  the  allegations  of 
the  bill,  the  exhibits  control. 

Illinois.  Dempster  v.  Lansingh, 
244  111.  402  (1910);  National  Park 
Bank  v.  Halle,  30  111.  App.  17 
(1888). 

Maryland.  Ridgley  v.  Wilmer, 
97  Md.  725,  729   (1903). 

New  Jersey.  Schuler  v.  Steel 
Co..  77  X.  J.  E.  60  (1910). 

Mississippi.    Moss  Point  Lumber 


ORIGINAL  BILLS 


191 


It  is  to  be  noticed,  however,  that  in  none  of  the  above 
methods  is  it  sufficient  in  order  to  make  the  exhibit  availa- 
ble on  demurrer  or  otherwise,  to  refer  to  the  exhibit  with- 
out filing  it  in  court  *^-  nor  to  file  an  exhibit  without  refer- 
ring to  it  as  above  indicated.^^ 

§  99.  Certainty  in  stating  grounds  of  relief.  By  the  term 
''grounds  of  relief"  here,  in  distinction  from  title,  is 
meant  all  those  circumstances,  incidents  or  matters  which 
the  plaintiff  is  obliged  to  state  in  addition  to  title  in  order 
to  show  that  he  has  a  right  to  relief  against  somebody, 
and  that  the  defendant  is  that  person.  Here  as  in  the 
allegation  of  title  the  pleader  should  state  the  specific 
facts  constituting  the  substantial  ground  work  of  his 
case,  and  not  loose  or  general  conclusions  from  those  facts, 
nor  mere  matter  of  argument. ^^     Thus  in  a  bill  seeking 


Co.  V.  Harrison  County,  89  Miss. 
448  (1906-7). 

West  Virginia.  Board  of  Educa- 
tion V.  Berry,  62  W.  Va.  433 
(1907);  Lockhead  v.  Berkely 
Spring  Waterworks,  40  W.  Va.  553 
(1895). 

United  States.  Shackleton  v. 
Baggerley,  170  Fed.  57,  95  C.  C.  A. 
505  (1909);  Willard  v.  Davis,  122 
Fed.  363  (C.  C.  1903). 

And  so  of  a  plea.  Wheeler  v. 
McCormick,  F.  C.  17,498,  8  Blatchf. 
267,  4  Fish.  Pat.  Cas.  433  (C.  C. 
1871). 

A  deed  made  an  exhibit  and  part 
of  a  bill  becomes  a  part  of  the 
record,  although  an  amended  bill 
simply  refers  to  the  deed  without 
making  it  a  part  of  the  amended 
bill.  Weit  V.  Jones,  84  Miss.  610 
(1904). 

Demurrer  lies  if  bill  and  exhibit 
are  inconsistent.  Barrett  v.  Cen- 
tral, etc.,  Assn.,  130  Ala.  294 
(1900). 

82.  Baltimore  v.  Coates,  85  Md. 
531   (1897). 


83.  Caton  v.  Willis,  5  Ired.  Eq. 
(N.  C.)  335  (1848).  So  in  Robin- 
son Co.  V.  Philips,  12  Fed.  670  (C. 
C.  1882),  the  plaintiff  was  not  al- 
lowed at  a  hearing  on  the  plead- 
ings to  introduce  documents  which 
had  not  been  made  a  part  of  the 
bill  by  proper  reference. 

But  the  exhibit  may  be  treated 
as  a  part  of  the  bill  when  referred 
to  in  the  bill  and  attached  there- 
to, although  not  made  by  the  bill 
explicitly  a  part  of  it.  Brunner  v. 
Equitable  Life,  etc.,  Assn.,  100  111. 
App.   22    (1902). 

84.  Alabama.  Scholze  v.  Stei- 
ner,  100  Ala.  148,  152  (1893); 
Lipscomb  v.  McClellan,  72  Ala.  151 
(1882). 

Florida.  Durham  v.  Edwards,  50 
Fla.  495   (1905). 

Illinois.  Hill  v.  Spencer,  196  HI. 
65  (1902);  Stow  v.  Russell,  36  HI. 
18  (1864);  Mitchell  Co.  v.  Mitchell, 
134  111.  App.  214   (1907). 

Maine.  Ulmer  v.  Falmouth  Loan, 
etc.,    Assn.,    93    Me.    302     (1889); 


192 


EQUITY  PRACTICE 


relief  on  the  ground  of  f  raud,^^  or  on  the  ground  of  acci- 


Merrill  v.  Washburn,  83  Me.  189 
(1891). 

Maryland.  Polk  v.  Rose,  25  Md. 
153,  89  Am.  Dec.  773  (1866);  Allen 
V.  Burke,  2  Md.  Ch.  534  (1849). 

Michigan.  Gregg  v.  Maynard, 
164  Mich.  535  (1911). 

Mississippi.  Perkins  v.  Saun- 
ders, 56  Miss.  733  (1879). 

New  Jersey.  Arnett  v.  Welch, 
46  N.  J.  E.  543  (1890);  Search  v. 
Search,  27  N.  J.  E.  137   (1876). 

Pennsylvania.  Delaware,  etc., 
Canal  Co.  v.  Pennsylvania  Coal  Co., 
21  Pa.  131  (1853);  Mengel  v.  Le- 
high Coal,  etc.,  Co.,  24  Pa.  Co.  Ct. 
152   (1900). 

Virginia.  Hutchinson  v.  Max- 
well, 100  A^a.  169  (1902);  Univer- 
sal Life,  etc.,  Co.  v.  Devore,  83  Va. 
267   (1887). 

West  Virginia.  Wellsburg,  etc., 
R.  Co.  V.  Panhandle  Traction  Co., 
56  W.  Va.  18  (1904);  Hood  v.  Mor- 
gan, 47  W.  Va.  817  (1900);  Zell 
Guano  Co.  v.  Heatherley,  38  W.  Va. 
409   (1893). 

United  States.  James  v.  City  In- 
vestment Co.,  188  Fed.  513  (C.  C. 
1911);  Price  v.  Coleman,  21  Fed. 
357  (C.  C.  1884) ;  Taylor  v.  Holmes, 
14  Fed.  498  (C.  C.  1882). 

Lack  of  particularity  may  be  ex- 
cused when  the  bill  shows  that  the 
facts  are  in  the  knowledge  of  the 
defendant  and  not  of  the  plaintiff. 
Towle  V.  Pierce,  12  Met.  (Mass.) 
329,  46  Am.  Dec.  679  (1847);  Mott 
V.  Mott,  49  N.  J.  E.  192  (1890); 
Watson  V.  Murray,  23  N.  J.  E.  257 
(1872);  Northern  Pac.  R.  Co.  v. 
Kindred,  14  Fed.  77  (C.  C.  1881). 

85.  Alabama.  Steiner  v.  Parsons, 
103  Ala.  215  (1893);  Flewellen  v. 
Crane,  58  Ala.  622  (1877). 


Florida.  Me  Clinton  v.  Chapin, 
54  Fla.  510  (1907). 

Illinois.  Murphy  v.  Murphy,  189 
111.  360  (1901);  Newell  v.  Bineau 
Supervisors,  37  111.  253  (1856); 
Toles  V.  Johnson,  72  111.  App.  182 
(1897). 

Maine.  Merrill  v.  Washburn,  83 
Me.   189    (1891). 

Maryland.  Grove  v.  Rentch,  26 
Md.  367   (1867). 

Massachusetts.  Nye  v.  Storer, 
168  Mass.  53  (1897);  Nichols  v. 
Rogers,  139  Mass.  146  (1885). 

Mississippi.  Jones  v.  Rogers,  85 
Miss.  802  (1904);  Weir  v.  Jones,  84 
Miss.  602  (1904). 

New  Jersey.  Schuler  v.  So.  Iron 
&  Steel  Co.,  77  N.  J.  E.  60  (1910); 
Davis  V.  Davis,  55  N.  J.  E.  37 
(1896);  Smith's  Admrs.  v.  Wood, 
44  N.  J.  E.  603,  42  N.  J.  E.  567 
(1887-8). 

Pennsylvania.  Graeff  v.  Felix, 
200  Pa.  137  (1901);  Sherman  v. 
Del.,  etc.,  Tel.  Co.,  36  Pa.  Sup.  Ct. 
487  (1908);  Leberman  v.  Leber- 
man,  18  Phil.  254  (1886). 

Rhode  Island.  Chapman  v.  Chap- 
man, 13  R.  L  680   (1882). 

West  Virginia.  McPeck  v.  Gra- 
ham, 56  W.  Va.  200  (1905);  Bil- 
lingsley  v.  Menear,  44  W.  Va.  651 
(1898). 

United  States.  Moore  v.  Greene, 
19  How.  69,  15  L.  ed.  533  (1856); 
Shackleton  v.  Baggaley,  170  Fed. 
57,  95  C.  C.  A.  505  (1909);  Hier- 
onymus  v.  N.  Y.  Bldg.,  etc.,  Assn., 
101  Fed.  12  (C.  C.  1899). 

Detailed  facts  need  not  be  given 
when  the  existence  of  a  confiden- 
tial relation  is  alleged.  Davis  v. 
Davis,  55  N.  J.  E.  37   (1896). 

A    general    allegation    of    other 


ORIGINAL  BILLS 


193 


dent  or  mistake  ^^  it  is  well  settled  that  a  mere  general 
allegation  is  insufficient,  the  acts  constituting  the  fraud 
or  other  cause  of  complaint  must  be  set  out.  The  bill 
should  fully  and  explicitly  state  the  circumstances,  so  as 
to  present  a  clear  picture  of  the  particulars  of  how  the 
fraud  was  committed  and  how  the  plaintiff  was  misled,  or 
of  the  character  and  causes  of  the  accident  or  mistake 
and  how  it  occurred.  Nevertheless  it  is  not  good  pleading 
to  leave  fraud  or  other  grounds  of  complaint  to  be  inferred 
solely  from  the  particular  facts.  When-  fraud  is  intended 
to  be  charged  it  should  be  distinctly  alleged,  and  it  is 
therefore  proper  to  conclude  the  statement  of  the  specific 
facts  with  a  general  allegation  of  fraud  or  other  ground  of 
relief,^'  though  the  general  allegation  alone  would  be  in- 


frauds  is  sufficient  where  certain 
specific  frauds  are  alleged  and  it  is 
stated  that  other  frauds  are  con- 
cealed by  the  defendant.  North- 
ern Pac.  E.  Co.  V.  Kindred,  147  Fed. 
77   (C.  C.  1881). 

Where  a  bill  sets  forth  such  lead- 
ing facts  as  do  not,  when  analyzed, 
show  a  case  of  fraud  or  mistake, 
allegations  or  averments  in  the 
bill  that  there  was  fraud  or  mis- 
take, and  the  expressions  "fraudu- 
lently," "deceitfully,"  "by  mis- 
take," interspersed  throughout  it, 
will  not  bring  the  case  within 
equitable  jurisdiction,  even  on  a 
demurrer  to  the  bill.  Magniac  v. 
Thomson,  Fed.  Cas.  8,957,  2  Wall. 
Jr.  209  (C.  C.  1852). 

But  where  the  fraud  was  con- 
cealed, there  must  be  distinct  aver- 
ments as  to  the  time  of  discovery, 
how  the  knowledge  was  obtained, 
reason  why  it  was  not  obtained 
earlier,  and  that  diligence  was 
used  in  investigating  the  transac- 
tions. A  general  allegation  that 
the  fraud  was  not  sooner  discov- 
Whitehouse  E.  P.  Vol.  I — 13 


ered  or  that  it  was  concealed  and 
that  the  plaintiff  was  in  ignorance 
of  its  existence  is  not  sufficient. 
Cutter  V.  Iowa  Water  Co.,  128  Fed. 
505  (C.  C.  1904),  reversed  on  other 
grounds  140  Fed.  986,  72  C.  C.  A. 
680  (1906);  Hubbard  v.  Manhat- 
tan Trust  Co.,  87  Fed.  51,  30  C.  C. 
A.  520  (1892). 

In  Alabama  the  test  is  given 
thus:  General  averments  of  fact 
from  which  unexplained  a  conclu- 
sion of  fraud  arises,  are  sufficient. 
Williams  v.  Spragins,  102  Ala.  424, 
430  (1894);  Burford  v.  Steele,  80 
Ala.  147  (1885).  Minute  circum- 
stances need  not  be  alleged.  Pick- 
ett V.  Pipkin,  64  Ala.  520  (1877). 
See  also  Seals  v.  Eobinson,  75  Ala. 
368   (1883). 

86.  Lunn  v.  Patterson,  143  111. 
App.  255  (1908);  Stover  v.  Poole, 
67  Me.  217  (1877);  Baston  v.  Find- 
ley,  52  W.  Va.  343  (1902);  Salinas 
V.  Stillman,  66  Fed.  677  (C.  C. 
A.  1894) ;  Durham  v.  Fire,  etc., 
Ins.  Co.,  22  Fed.  468  (C.  C.  1884). 

87.  Heard's  Eq.  PI.,  p.  31. 


194 


EQUITY  PRACTICE 


sufficient.  So  a  general  allegation  of  irreparable  injury 
in  a  bill  for  injunction  is  insufficient.^* 

Where  time  is  material  it  should  be  alleged  with  such 
accuracy  as  to  prevent  any  possibility  of  doubt  as  to  the 
period  intended  to  be  defined,^^  but  in  equity  time  is 
often  regarded  as  not  of  the  essence  of  a  contract,^*'  and 
in  such  cases  the  laying  of  an  event  as  on  or  about  a 
certain  day  of  a  certain  month  or  year  is  a  sufficient 
specification  of  time.^^ 

§  100.  Evidence.  On  the  other  hand,  while  being  care- 
ful to  state  the  material  facts  of  the  case  specifically  and 
not  mere  general  conclusions  therefrom,  it  is  equally 
important  to  guard  against  the  other  extreme.  The  plain- 
tiif  should  not  set  forth  minutely  all  the  details  of  the  case 
nor  the  mode  of  proof  of  an  alleged  fact,  for  these  consti- 
tute matter  of  evidence  rather  than  allegation.^'-    So  it  is 


88.  Florida.  H.  W.  Metcalf  Co. 
V.  Martin,  54  Fla.  531  (1907). 

Illinois.  Builders',  etc.,  Co.  v. 
Advisory,  etc.,  Trades,  116  111.  App. 
264   (1904). 

Maryland.  West  Arlington  Land 
Co.  V.  Flannery,  115  Md.  274 
(1911). 

Virginia.  Collins  v.  Sutton,  94 
Va.  127  (1896). 

West  Virginia.  Merriner  v.  Mer- 
riner,  54  W.  Va.  169  (1903). 

United  States.  Ashburn  v.  Graves, 
149  Fed.  968,  79  C.  C.  A.  478 
(1907). 

And  see  §  91,  anle,  p.  173. 

89.  Daniell's  Ch.  Pr.  (6tli  Am. 
ed.)  369,  citing  Goddard  v.  Keeble, 
Bunb.  105;  Phillips  v.  Symes,  Bunb. 
171.  See  Warner  v.  Warner,  33 
Miss.  547  (1857);  Price  v.  Cole- 
man, 21  Fed.  357  (C.  C.  1884). 

Where  a  bill  seeks  to  enforce  a 
contract  dependent  upon  the  time 
when  it  was  made,  the  bill  must 
state   the    time    or    the    court   will 


presume  it  was  made  at  an  im- 
proper time.  Eeel  v.  Overall,  39 
Ala.   138   (1863). 

90.  See  for  example  Snowman  v. 
Harford,  55  Me.  197  (1867);  Nes  v. 
Union  Trust  Co.,  104  Md.  15  (1906) ; 
Moote  V.  Scriven,  33  Mich.  500 
(1876);  Griggs  v.  Landis,  21  N.  J. 
E.  494  (1870);  Longworth  v.  Tay- 
lor, F.  C.  8,490   (C.  C.  1835). 

But  compare  L'Engle  v.  Over- 
street,  61  Fla.  653  (1911);  Loggie 
V.  Chandler,  95  Me.  220  (1901), 
where  time  was  held  to  be  of  the 
essence;  and  Thayer  v.  Star  Mining 
Co.,  105  111.  540  (1883);  Eobinson 
V.  Trufant,  97  Mich.  410  (1883); 
Mound  Mines  v.  Hawthorne,  173 
Fed.  882  (C.  C.  A.  1909),  where 
stipulations  that  time  should  be  of 
the  essence  were  held  to  have  been 
waived. 

91.  Daniell's  Ch.  Pr.  (6th  Am. 
ed.),  p.  369. 

92.  Alabama.  Cabbell  v.  Wil- 
liams,   127    Ala.    320    (1899);    Wil- 


ORIGINAL  BILLS  195 

not  necessary  to  allege  that  a  deed  was  acknowledged  and 
recorded.*^^  Nor  is  it  necessary  to  allege  that  an  assign- 
ment or  contract  is  in  writing;  for  if  a  bill  alleges  gen- 
erally that  an  agreement  or  contract  was  made,  the  court 
will  presume  it  was  a  legal  contract,  until  the  contrary 
appears ;  and  the  defendant  must  either  plead  the  fact  that 
it  was  not  in  writing  or  insist  upon  that  defense  in  his 
answer.^^ 

If  alleged  to  be  in  writing,  it  need  not  be  averred  that 
it  was  signed,  since  the  latter  fact  may  be  presumed  from 
the  statement  that  it  was  in  writing.^*^  So  it  is  sufficient 
to  allege  that  a  will  was  duly  made,  without  averring  the 
signature  or  attestation."^  The  confessions,  admissions 
and  conversations  of  the  defendant  need  not  be  expressly 
charged  in  the  bill  in  order  to  entitle  the  plaintiff  to  use 
them  in  proof  of  facts  charged  therein.  The  old  English 
rule  to  the  contrary  does  not  prevail  in  this  country.**^ 

§  101.  Charges  in  the  alternative.  As  shown  above,  a 
plaintiff  cannot  assert  his  title  in  the  alternative.^^  So  in 
general  he  cannot  in  any  case  set  out  two  facts  in  the  alter- 

liams    V.    Spragins,    102    Ala.    424  devise  may  be  shown.     Sinclair  v. 

(1894).  Hornsby,  61  Fla.  742  (1911).     And 

Delaware.     Cannon  v.   Collins,  3  likewise  in  alleging  conveyance  by 

Del.  Ch.  132,  141  (1867).  deed  it  is  unnecessary  to  allege  a 

Florida.     H.   W.   Metcalf   Co.   v.  delivery  of  the  deed.     Whitten  v. 

Orange  County,  56  Fla.  829  (1908).  Whitten,  36  N.  H.  326  (1858). 

Michigan.     Wilson  v.  Eggleston,  94.  See  note  46,  ante,  p.  180. 

27  Mich.  257   (1873).  95.  Daniell 's    Ch.    Pr.    (6th    Am. 

New    Jersey.      Camden,    etc.,    E.  ed.),    p.    365,    citing    Barkworth    v. 

Co.    v.    Stewart,    19    N.   J.    E.    343  Young,  4  Drew.   1. 

(1868).  96.  Hyde   v.   Edwards,   12   Beav. 

Pennsylvania.     Winebrenner     v.  (Eng.)   160. 

Colder,  43  Pa.  S.  244  (1862).  97.  Bishop  v.  Bishop,  13  Ala.  475 

United      States.      St.     Louis     v.  (1848);    Cannon   v.   Collins,   3   Del. 

Knapp  Co.,  104  U.  S.  658,  26  L.  ed.  Ch.  132,  141  (1867);  Smith  v.  Burn- 

883    (1881).      See    Federal    Equity  ham,  2  Sumn.  612   (C.  C.  1837). 

Rule  25.  98.  Edwards  v.  Edwards,  1  Jac. 

93.  Lovell  v.  Farrington,  50  Me.  335   (Eng.  1826);  Spears  v.  Cheat- 

239   (1863).     And  under  an  allega-  ham,   44    Miss.    64    (1870);    Bynum 

tion    of    ownership    in    fee    simple  v.  Ewart,  90  Tenn.  655  (1891). 
and  possession,  title  by  descent  or 


196 


EQUITY  PRACTICE 


native  only  one  of  which  is  ground  for  the  relief  asked,^^ 
nor  state  two  different  and  inconsistent  sets  of  facts  and 
ask  for  relief  in  the  alternative.^^*^^  But  he  may  aver  two 
sets  of  facts  of  a  different  nature,  where  either  set  if  true 
would  support  the  relief  asked  and  the  relief  asked  is  one 
and  the  same  upon  either  set  of  facts.^  Or  he  may  aver 
one  set  of  facts  and  pray  for  alternative  relief  depending 
upon  the  conclusion  to  which  the  court  may  come  upon  the 
given  state  of  facts. ^^  The  last  two  classes  are  known  as 
bills  with  a  double  aspect. 

The  test  as  to  whether  a  bill  is  properly  drawn  as  a  bill 
with  a  double  aspect  is  whether,  if  the  bill  be  taken  jjro 
confesso,  any  certain  relief  could  be  granted  the  plaintiff, 
looking  merely  at  the  statements  of  the  bill.-  The  dis- 
tinctions between  the  four  classes  above  described  are 
clear  but  close,  and  the  pleader  should  consider  carefully 
the  principles  and  authorities  on  which  they  rest  before 
attempting  to  draw  his  bill  with  a  double  aspect. 

§  102.  Uncertainty — How  taken  advantage   of.     The 


99.  David  v.  Shepard,  40  Ala. 
587  (1867);  Lucas  v.  Oliver,  3-t 
Ala.  626  (1859);  Robinson  v.  Eob- 
inson,  73  Me.  170,  177  (1882); 
Shields  v.  Barrow,  17  How.  (U.  S.) 
130,  15  L.  ed.  158  (1854);  St.  Louis, 
etc.,  R.  Co.  V.  Terre  Haute,  etc., 
E.  Co.,  33  Fed.  440,  448  (C.  C. 
1888). 

100.  Alabama.  Henry  v.  Tennes- 
see, etc.,  Co.,  164  Ala.  376  (1909); 
Brooks  V.  Lowenstein,  124  Ala.  158 
(1899);  Micou  v.  Ashurst,  55  Ala. 
607   (1876). 

Maine.  Robinson  v.  Robinson, 
73  Me.  170,  177  (1882). 

Michigan.  Hart  v.  McKeen, 
Walk.   (Mich.)  417   (1844). 

United  States.  Cella  v.  Brown, 
144  Fed.  742   (C.  C.  A.  1906). 

Many  of  the  cases  cited  under 
§§  110  and  112,  post,  and  espe- 
cially in  footnotes  16  to  19  and  21 


to   26,    inclusive,    are    examples    of 
the  principle  stated  in  the  text. 

1.  Peters  v.  Rhodes,  157  Ala.  25 
(1908) ;  Shipman  v.  Furniss,  69  Ala. 
555,  44  Am.  Rep.  528  (1881);  Ger- 
rish  V.  Towne,  3  Gray  (Mass.)  82 
(1854) ;  Gragg  v.  Maynard,  164 
Mich.  535  (1911);  Wilson  v.  Addi- 
son, 127  Mich.  680  (1901);  West- 
inghouse,  etc.,  Co.  v.  Kansas,  etc., 
R.  Co.,  137  Fed.  26,  71  C.  C.  A.  1 
(1905). 

la.  See  §  120,  i->ost,  p.  226. 

2.  Henry  v.  Tennessee  Live  Stock 
Co.,  164  Ala.  376  (1909);  Caldwell 
V.  King,  76  Ala.  149  (1884). 

Under  Federal  Equity  Rule  19, 
a  bill  of  more  than  one  aspect  will 
be  viewed  in  that  aspect  which  best 
gives  the  plaintiff  the  relief  to 
which  he  is  entitled,  ^ledical  Soc.  v. 
Gilbreth,  208  Fed.  899  (1913). 


ORIGINAL  BILLS 


197 


objection  that  a  bill  is  deficient  in  certainty  should  be 
taken  by  demurrer  ^  but  amendments  may  be  allowed  on 
terras. 

§  103.  Judicial  notice.  The  bill  need  not  and  should  not 
state  matter  of  which  the  court  is  bound  to  take  judicial 
notice,  such  as  public  law.^  But  foreign  laws  and  private 
acts  should  be  averred.^'' 

§  104.  Conclusions  of  law.  The  general  rule  applied 
above  in  regard  to  titles  obtains  elsewhere,  that  mere 
conclusions  of  law  should  not  be  stated,  but  the  facts  from 
which  those  conclusions  can  be  drawn  by  the  court.  But 
where  certain  facts  are  stated  from  which  it  is  intended  to 
draw  a  conclusion  of  law,  the  bill  ought  to  be  so  framed  as 
to  give  notice  to  the  defendant  of  the  plaintiff's  intention 
to  insist  on  such  conclusions,  or  otherwise  he  may  not  be 
allowed  to  do  so.^"*    Consequently  it  is  well  in  such  cases 


3.  See  cases  cited  under  §§  96 
and  97,  <ante,  pp.  183  et  seq.,  where 
demurrers  for  lack  of  certainty 
were  sustained.  In  many  of  these 
cases  the  demurrer  was  general  for 
lack  of  equity. 

Where  it  is  possible  to  interpret 
the  allegations  so  as  to  sustain  the 
bill,  it  will  be  held  good  on  gen- 
eral demurrer,  and  the  demurrer, 
to  be  sustained,  should  be  special, 
after  which  leave  to  amend  will 
be   granted. 

Alabama.  Seals  v.  Robinson,  75 
Ala.  363   (1883). 

Micliigan.  Flynn  v.  Third  Nat. 
Bank,  122  Mich.  642   (1900). 

Mississippi.  Smith  v.  Gill,  52 
Miss.  607  (1876);  Murrell  v.  Jones, 
40  Miss.  565   (1866). 

New  Jersey.  Wilson  v.  Hill,  46 
N.  .7.  E.  367   (1890). 

Vermont.  Stewart  v.  Flint,  57 
Vt.   216    (1884). 

United  States.  Pacific  Live  Stock 
Co.  V.  Hanley,  98  Fed.  327  (C.  C. 
1889). 


An  objection  for  uncertainty 
cannot  usually  be  taken  after  the 
hearing.  Ramsey  v.  Liston,  25  111. 
114  (1860);  Rowell  v.  Jewell,  71 
Me.  408    (1880). 

In  New  Jersey,  objection  may  be 
taken  by  motion  to  strike  out  por- 
tions of  the  bill  for  uncertainty. 
Muller  V.  Muller,  76  N.  J.  E.  158 
(1909). 

4.  Story's  Eq.  PI.  (10th  ed.),Sec. 
24,  citing  1  Mont.  Eq.  PI.,  Ch.  2, 
pp.  5-9. 

4a.  Story's  Eq.  PL  (10th  ed.), 
Sec.  24,  citing  Mostyn  v.  Fabrigas, 
Cowp.  174.  See  also  Perry  v.  R.  R. 
Co.,  55  Ala.  413   (1876). 

5.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  372.  Thus  in  a  bill  for  specific 
performance  of  an  agreement  to 
sell  a  leasehold,  the  plaintiff  was 
not  allowed  to  insist  that  the  de- 
fendant had  waived  his  rights  to 
inquire  into  the  landlord's  title, 
because  although  he  had  stated  in 
his  bill  facts  from  which  the 
waiver  might  be  inferred,  he  had 


198  EQUITY  PRACTICE 

to  follow  the  allegation  of  facts  with  a  statement  of  the 
legal  conclusions  to  be  drawn  therefrom."^ ^ 

§  105.  Information  and  belief.  Whatever  is  essential 
to  the  plaintiff's  case  and  is  within  his  knowledge  and 
belief  must  be  alleged  positively  as  a  fact.  Where  the  bill 
alleges  merely  that  the  plaintiffs  are  informed  and  believe 
essential  facts  set  out  in  the  clause  of  a  bill,  it  is  defect- 
ive.^'' It  does  not  allege  the  facts  upon  information  and 
belief,  it  alleges  only  information  and  belief  of  the  facts. 
But  an  averment  of  the  facts  as  the  plaintiff  is  informed 
and  believes,  or  a  statement  that  the  plaintiff  is  informed 
and  believes  and  therefore  avers,  is  sufficient.^  But  ex- 
cept where  a  bill  is  to  be  verified,  there  is  no  practical 
purpose  served  by  the  employment  of  either  of  these 
phrases,  since  if  the  plaintiff  really  believes  his  informa- 
tion to  be  true  there  is  no  reason  whatever  why  he  should 
not  aver  it  simply  and  directly  as  a  fact. 

§  106.  Impertinence.  Though  the  allegations  of  a  bill 
must  be  certain  and  complete,  yet  on  the  other  hand  they 
must  not  contain'  impertinent  or  scandalous  matter. 
Impertinence  may  be  defined  as  the  introduction  of  any 
matter  into  a  bill,  answer  or  other  pleading  in  a  suit, 
which  was  not  properly  before  the  court  for  decision  at 

not  alleged   the  waiver.     Clive  v.  United  States.     Bank  v.  Eindge, 

Beaumont,  1  DeG.  and  S.  397;  Gas-  57  Fed.  279  (C.  C.  1893),  action  at 

ton    V.    Frankum,    2    DeG.    and    S.  law. 

561.  So   a  fortiori  an  allegation   that 

5a.  Heard's  Eq.  PI.,  p.  27;  Allen  plaintiff   does   not   know  what   the 

V.   O 'Donald,    23    Fed.    576    (C.    C.  fact   is.     Guyton   v.   Flack,   7   Md. 

1885).  398    (1855).      Or    that    he    "is    of 

5b.  Alabama.      Lucas    v.   Oliver,  opinion  that"  the  fact  is  thus  and 

34  Ala.  626   (1859).  so.     Carter  v.  Lyman,  33  Miss.  171 

Illinois.     Murphy  v.  Murphy,  189  (1857).      Or    that    he    is    informed 

m.    360    (1901);    Walton   v.   West-  that    a    fact    exists.     Sandifer    v. 

wood,  73  111.  125  (1874).  Sandifer,  229  111.  523   (1907). 

Maine.     Bailey   v.   Worster,   103  6.  Lucas   v,   Oliver,   34  Ala.   626 

Me.  591    (1907);   Messer  v.  Storer,  (1859);   Coryell  v.  Klehm,  157  111. 

79  Me.  512   (1887).                                '    462  (1895);  Campbell  v.  Paris,  etc., 
Vermont,     Quinn   v.   Valiquette,  E.  E.  Co.,  71  111.  611  (1874). 

80  Vt.  434  (1908), 


ORIGINAL  BILLS 


199 


any  particular  stage  of  the  suit  J  Under  this  head  may  be 
included  all  prolix,  redundant,  irrelevant  and  immaterial 
matter.  This  does  not  mean  that  the  bill  will  be  regarded 
as  impertinent  because  there  are  a  few  unnecessary  words 
here  and  there.  There  must  be  some  more  substantial  and 
burdensome  digression.^  The  best  test  of  impertinence 
is  to  try  whether  the  allegations  could  be  put  in  issue  and 
given  in  evidence  between  the  parties.^ 

§  107.  Scandal.  Scandal  consists  of  the  unnecessary 
allegation  of  anything  which  it  is  unbecoming  the  dignity 
of  the  court  to  hear,  which  is  contrary  to  good  manners, 
or  which  impugns  the  moral  character  of  an  individual  or 
charges  him  with  some  crime. ^"^  Scandal  is  thus  seen  to  be 
merely  an  aggravated  form  of  impertinence.     All  scan- 


7.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  266;  Dan.  Ch.  Pr.  (6th  Am. 
ed.),  p.  349.  See  the  following 
cases  in  which  the  court  found  im- 
pertinence in  the  bill:  Spaulding 
V.  Farwell,  62  Me.  319  (1874);  Ca- 
nadian R.  R.  Co.  V.  Stewart,  19  N. 
J.  E.  343,  346  (1868);  United  States 
V.  Kettenbach,  175  Fed.  463  (C.  C. 
1909);  South,  etc.,  R.  Co.  v.  R.  R. 
Commrs.,  171  Fed.  225  (C.  C.  1909). 
Compare,  where  exceptions  for  im- 
pertinence were  overruled,  Wilkin- 
son V.  Dodd,  42  N.  J.  E.  234,  647 
(1886-7);  United  States  v.  Hyde, 
145  Fed.  393  (C.  C.  1906) ;  Polk  v. 
Mutual  Reserve,  etc.,  Assn.,  128 
Fed.  524  (C.  C.  1904);  Burden  v. 
Burden,  124  Fed.  250   (C.  C.  1903). 

"A  prolix  setting  forth  of  per- 
tinent matter  is  itself  imperti- 
nent." Lord  Eldon  in  Slack  v. 
Evans,  7  Price  278n. 

A  brief  of  counsel  may  be 
stricken  from  the  files  as  imperti- 
nent or  scandalous.  Green  v.  El- 
bert, 137  U.  S.  615,  34  L.  ed.  792 
(1891).  See  also  Chapter  XIII, 
Sec.  274,  post,  p.  473. 


8.  See  cases  cited  in  note  7,  ante. 
Relevant  matter  is  of  course  not 

impertinent.      Trustees,   etc..   Fund 
V.  Root,  58  So.  371   (Fla.  1911). 

9.  A  pleader  may  be  allowed  to 
set  forth  additional  cumulative 
facts  to  a  reasonable  extent  to 
strengthen  and  intensify  his 
grounds  for  relief.  Noble  v.  Moses, 
81  Ala.  530  (1886).  Where  imperti- 
nence is  claimed,  the  court  will  not 
order  the  matter  complained  of 
stricken  out  unless  the  imperti- 
nence is  very  fully  and  clearly 
made  out,  for  if  erroneously  strick- 
en out  it  is  irremediable.  Story's 
Eq.  PI.  (10th  ed.).  Sec.  267,  citing 
Davis  V.  Cripps,  2  Y.  &  Coll.  Ch. 
443;  Atty.  Gen.  v.  Rickards,  6  Beav, 
444. 

10.  And  it  is  immaterial  whether 
or  not  the  individual  is  a  party  to 
the  suit.  Johnson  v.  Tucker,  2 
Tenn.  Ch.  244  (1875).  See  Dan- 
iell's  Ch.  Pr.  (6th  Am.  ed.),  p.  347, 
and  Chapter  XIII,  §  274,  post, 
p.  473. 


200  EQUITY  PRACTICE 

dalous  matter  is  necessarily  impertinent  but  impertinent 
matter  is  not  necessarilj^  scandalous.  Nothing  which  is 
actually  relevant  to  the  merits  of  the  cause  even  though 
harsh  and  injurious  is  ever  scandalous. ^^ 

§  108.  Exceptions  to  bills.  Impertinence  and  scandal 
are  not  grounds  for  demurrer.  The  objections  should  be 
taken  in  cases  of  impertinent  as  well  as  scandalous  matter 
by  exceptions  ^-  to  the  bill,  pointing  out  the  particular 
passages  excepted  to.  Under  the  chancer)^  rules,  excep- 
tions to  bills  may  be  filed  within  a  certain  number  of  days 
after  return  day  and  the  exceptions  shall  be  disposed  of  by 
reference  to  a  master  or  otherwise  as  the  court  may  direct. 
If  the  objection  is  sustained,  the  impertinent  or  scandal- 
ous matter  will  be  ordered  stricken  out  and  if  the  matter 
is  grossly  scandalous,  costs,  double  and  treble  may  be 
awarded  against  both  plaintiff  and  his  solicitor  as  well 
and  execution  may  be  issued  therefor  as  the  court  shall 
order.^^ 

§  109.  Multifariousness.  A  bill  is  demurrable  for  what 
is  known  as  multifariousness.     There  appears  to  be  no. 

11.  Commissioners  v.  Deboe,  43  rat  v.  Excelsior  Mfg.  Co.,  44  Fed. 
111.  App.  25   (1891),  where  scandal       142  (C.  C.  1890). 

in  an  answer  was  claimed.  13.  See  the  following  rules  and 

12.  Spaulding  v.  Farwell,  62  Me.  statutes  relating  to  impertinence 
S19  (1874);  Camden,  etc.,  R.  Co.  v.  and  scandal,  and  exceptions  there- 
Stewart,  19  N.  J.  E.  343  (1868);  for:  Alabama,  Eq.  Rules  33  to  37; 
Polk  V.  Mutual  Reserve,  etc.,  Assn.,  Florida,  Eq.  Rules  19,  20;  Maine, 
128  Fed.  524  (C.  C.  1904).  Eq.  Rule  19;  Maryland,  Code,  Sec. 

The    court    may   act   sua   sponte.  144,  Eq.  Rule  13;  Pennsylvania,  Eq. 

Coffin  V.  Cooper,  6  Ves.  Jr.  (Eng.)  Rule   15;   Rhode  Island,  Eq.   Rules 

514,  31  Eng.  Rep.  1,171;  Pinneo  v.  12,  13;  Vermont,  Eq.  Rules  42,  43. 

Goodspeed,  104  HI.  184  (1882);  Kel-  By    United    States    Equity    Rule 

ley  V.  Boettcher,  85  Fed.  55   (C.  C.  21,  exceptions  are  not  to  be  taken 

A.  1898).  for    scandal    or    impertinence,    but 

In  New  Jersey,  scandalous  mat-  the  scandalous  or  impertinent  por- 
ter may  be  stricken  out  on  motion.  tions  of  the  pleading  are  to  be 
Brindly  v.  Lawton,  53  X.  J.  E.  259  struck  out  by  the  court  on  motion 
(1895);  Kirkpatrick  v.  Corning,  40  or  on  its  own  initiative,  with  such 
N.  J.  E.  241   (1885).  provisions  as  to  costs  as  the  court 

Demurrer  is  improper.    Simonton  may  order. 
V.  Bacon,  49  Miss.  583  (1873) ;  Ster- 


ORIGINAL  BILLS  201 

positive  or  inflexible  rule  reconcilable  with  all  the  author- 
ities as  to  what  shall  constitute  multifariousness  in  a  bill, 
but  each  case  must  in  a  great  measure  be  governed  by  its 
own  circumstances  and  much  must  be  left  to  the  discre- 
tion of  the  court.  ^^  As  the  term  multifariousness  is  imder- 
stood  today,  it  may  be  briefly  defined  as  the  improper 
joinder  of  distinct  and  independent  matters  in  one  bill.^^ 
This  definition  contains  the  essence  of  the  offence  but  it 
embraces  two  distinct  classes  of  multifariousness:  (1) 
the  simple  joinder  of  distinct  subject  matters  in  one  bill, 
strictly  known  as  misjoinder  of  causes  and  (2)  the  joinder 
of  distinct  subject  matters  in  one  bill  against  several 
defendants  some  of  whom  have  no  interest  whatever  in 
one  or  more  of  the  causes  thus  joined.  This  is  multifari- 
ousness proper  or  what  is  more  commonly  understood  by 
the  term. 

§  110.  Misjoinder  of  causes.  By  the  term  misjoinder 
of  causes  is  meant  simply  the  joinder  of  distinct  causes  of 
relief  in  one  bill,  that  and  nothing  more ;  or  in  other  words 
where  the  cases  united  are  of  so  different  a  nature  that  the 
court  regards  it  as  inconvenient  and  improper  to  deal  with 
them  both  in  one  suit,  even  though  all  the  parties  to  the 

14.  In  the  following  cases  the  Story's  widely  quoted  definition 
power  of  the  court  to  use  its  dis-  (Story 's  Eq.  PI.,  10th  ed.,  Sec.  271), 
cretion  is  emphasized:  viz.:      "By   multifariousness    in   a 

Florida.     Murrell  v.  Peterson,  57  bill  is  meant  the  improperly  join- 

Fla.  480  (1909).  ing  in   one  bill   distinct   and   inde- 

Illinois.  Sherlock  v.  Winetha,  59  pendent  matters  and  thereby  con- 
Ill.  389  (1871) ;  Guyer  v.  Auers,  132  founding  them;  as,  for  example,  the 
111.  App.  520  (1907).  uniting  in  one  bill  of  several  mat- 
Maine.  Warren  v.  Warren,  56  ters  perfectly  distinct  and  uncon- 
Me.  360   (1868).  neeted,   against   one   defendant,   or 

Massachusetts.     Bliss    v.    Parks,  the  demand  of  several  matters  of  a 

175  Mass.  539    (1900).  distinct     and     independent     nature 

IMicliigan.     Torrent  v.  Hamilton,  against   several   defendants  in   the 

95  Mich.  159   (1893).  same  bill."     It  will  be   seen  that 

New     Hampshire.     Eastman     v.  the  latter  part  of  the  above  defini- 

Savings  Bank,  58  N.  H.  421  (1878).  tion    is    merely    illustrative.      The 

Virginia.     Spooner  v.  Hilbish,  92  main   rule   contains   no   more   than 

Va.  333  (1895).  that  given  in  the  text. 

15.  This    is   the    essence    of    Mr. 


202 


EQUITY  PRACTICE 


bill  are  interested  in  each  of  the  causes  of  relief  set  oiit.^^ 
Consequently  though  a  bill  with  distinct  causes  be  brought 
against  several  defendants,  if  all  are  interested  in  each 
cause  the  defect  still  belongs  under  the  head  of  mis- 
joinder; ^"  and  all  cases  of  bills  containing  distinct  mat- 
ters brought  against  one  defendant  alone/^  are  of  this 
class.  These  cases  are  very  frequent  and  though  strictly 
misjoinder  of  causes  they  have  come  to  be  known  by  the 
general  term  of  multifariousness  and  must  be  included  as 
one  of  its  branches  in  any  definition  of  the  word  today. 
Examples  of  this  class  of  multifariousness  are  given  in 
the  footnote.^^ 


16.  In  Emans  v.  Emans,  14  N.  J. 
Eq.  114  (1S61),  the  court  said: 
"Lord  Eedesdale  limits  the  vice  of 
multifariousness  to  cases  whereby 
one  bill  the  plaintiff  demands  sev- 
eral matters  of  different  nature 
against  several  defendants.  Mit- 
ford's  Eq.  PI.  by  Jeremy  181.  It 
includes,  also,  the  uniting  of  sev- 
eral matters,  perfectly  distinct  and 
unconnected,  against  the  same  de- 
fendant. Cooper's  Eq.  PI.  182; 
Story's  Eq.  PI.,  Sec.  271;  1  Dan. 
Ch.  Pr.  383,  391,  393. 

"The  objection  in  the  latter 
class  of  cases,  though  termed  mul- 
tifariousness, is  in  fact  more  prop- 
erly misjoinder;  that  is  to  say,  the 
cases  or  claims  united  in  the  bill 
are  of  so  different  a  character  that 
the  court  will  not  permit  them  to 
be  litigated  in  one  record.  Per 
Lord  Cottenham,  Chancellor,  in 
Campbell  v.  Mackay,  1  Myl.  and 
Craig,  615;  1  Dan.  Ch.  Pr.  391." 

17.  The  case  of  Salvage  v.  Hyde, 
5  Madd.  138,  is  of  this  class.  The 
bill  there  was  for  the  administra- 
tion of  a  testator's  estate,  and  to 
set  aside  a  sale  made  of  part  of 
it  bv  the  executor,  and  the  court 


refused  to  allow  the  two  subjects 
to  be  united,  although  the  defend- 
ants were  liable  in  respect  to  each. 
For  cases  in  this  country,  see  note 
19,  post. 

18.  See  cases  in  note  19,  post. 

19.  Alabama.  Priekett  v.  Prick- 
ett,  147  Ala.  494  (1906),  bill  by 
wife  against  husband  to  enforce  a 
resulting  trust  and  to  get  alimony. 

Florida.  Robinson  v.  Springfield 
Co.,  21  Fla.  203  (1885),  bill  to  set 
aside  fraudulent  conveyances  and 
also  to  remove  a  cloud  on  title. 

nUnois.  Williams  v.  Harper,  127 
111.  App.  619  (1906),  bill  to  re- 
strain the  enforcement  of  distinct 
contracts  made  by  the  defendant 
with  separate  parties  plaintiff. 

Massachusetts.  Mesisco  v.  Giul- 
iana,  190  Mass.  352  (1906),  bill  to 
compel  reinstatement  of  plaintiff 
to  membership  in  an  association 
and  to  recover  sick  benefits;  Kel- 
ley  V.  Morrison,  176  Mass.  531 
(1900),  bill  by  administrator  of  a 
partner  to  obtain  intestate's  share 
of  the  profits  and  also  to  examine 
books  and  papers  of  the  firm  for 
another  purpose;  Green  v.  Gaskill, 


OKIGINAL  BILLS 


203 


§  111.  — Discretion  of  the  court.  But  it  is  not  to  be  un- 
derstood that  in  all  cases  where  there  is  a  misjoinder  of 
causes,  the  defendants  are  entitled  to  have  the  bill  dis- 
missed on  demurrer  as  a  matter  of  absolute  right.  It  is  in 
this  class  of  cases  especially  that  the  court  exercises  its 


175  Mass.  265  (1900),  bill  asking 
that  defendant  account  for  a  fund 
entrusted  to  his  predecessor  as 
trustee  and  for  a  part  thereof 
which  came  male  fide  into  the 
hands  of  another  person  of  whom 
defendant  is  executor;  Davis  v. 
Peabody,  170  Mass.  397  (1898), 
bill  against  trustees  of  a  corpora- 
tion to  invalidate  a  contract  to  be- 
come a  stockholder  and  loan 
money,  and  for  the  appointment  of 
a  receiver  and  distribution  of  the 
assets,  not  as  incidental  to  the 
other  relief;  Eicker  v.  Brooks,  155 
Mass.  400  (1892),  bill  to  deal  with 
the  debtor's  property  transferred 
by  common  law  assignment  and 
also  to  annul  subsequent  composi- 
tion proceedings  in  the  insolvency 
court;  White  v.  Bigelow,  154  Mass. 
593  (1891),  bill  by  plaintiff  both 
as  widower  and  as  his  wife's  ad- 
ministrator. 

Michigan.  Eollins  v.  Van  Baa- 
len,  56  Mich.  610  (1885),  bill  filed 
by  plaintiff  for  inconsistent  relief 
as  attaching  creditor  and  as  gen- 
eral creditor. 

Mississippi.  By  the  Code,  Sec. 
598,  "the  uniting  in  one  bill  of  sev- 
eral distinct  and  unconnected  mat- 
ters of  equity  against  the  same  de- 
fendants shall  not  be  an  objection 
to  the  bill." 

New  Jersey.  Emaus  v.  Emans, 
14  N.  J.  E.  114  (1861),  bill  for 
specific  performance  of  an  award 
or  to  ascertain  whether  the  award 
was  fair  and  equal. 

Pennsylvania.  Hutchinson  v.  Den- 


nis, 217  Pa.  290  (1907),  bill  by 
father  against  children  to  estab- 
lish title  in  himself  to  certain  real 
estate  and  certain  deposits  in  a 
savings  bank  standing  in  the  name 
of  his  deceased  wife,  and  to  set 
aside  certain  conveyances  procured 
by  the  children  by  undue  influ- 
ence. 

Rhode  Island.  W.  E.  A.  Legg 
Co.  V.  Dewing,  25  R.  I.  568  (1904), 
claim  under  different  statutory  sec- 
tions against  defendant  as  officer 
and  stockholder  and  as  director  of 
a  corporation. 

Virginia.  Brown  v.  Bedford  City 
Land,  etc.,  Co.,  91  Va.  31  (1895), 
bill  by  stockholders  to  have  their 
subscriptions  cancelled  and  also  to 
obtain  relief  against  mismanage- 
ment. 

West  Virginia.  Day  v.  National, 
etc.,  Assn.,  53  W.  Va.  550  (1903), 
bill  by  member  of  loan  association 
to  have  his  stock  treated  as  void 
for  fraud  and  usury  and  also  to 
wind  up  the  association  because  of 
the  mismanagement  of  the  officers. 

United  States.  Williams  v.  Jack- 
son, 107  U.  S.  478,  27  L.  ed.  529 
(1882),  bill  against  the  defendant 
individually  and  as  trustee;  Robin- 
son V.  Chicago  Rys.  Co.,  174  Fed. 
40,  98  C.  C.  A.  26  (1909),  bill  for 
infringement  of  two  patents  not 
capable  of  conjoint  use  or  as  a  sin- 
gle device;  Emmons  v.  National, 
etc.,  Assn.,  135  Fed.  689,  68  C.  C. 
A.  327  (1905),  bill  by  member  of 
loan  association  to  have  his  stock 
treated  as  void  for  fraud  and  usury 


204 


EQUITY  PRACTICE 


discretion,  since  the  defendants  would  not  be  relieved 
from  litigation  and  expense  so  much  b}^  dismissing  the  bill 
as  by  retaining  it  and  thus  avoiding  multiplicity  of  suits. 
Consequently  where  it  will  not  be  inconvenient  or  pre- 
judicial to  any  one  the  court  will  in  its  discretion  retain 
the  bill  in  such  cases  although  it  contains  entirely  distinct 
causes  of  relief.^" 


and  also  to  wind  up  the  associa- 
tion because  of  the  mismanagement 
of  the  officers;  Twenty-third  St. 
Ry.  Co.  V.  Met.  St.  Ry.  Co.,  177 
Fed.  477  (C.  C.  1910),  lessor's  bill 
for  cancellation  of  notes  issued  er- 
roneously by  lessee  under  the  lease, 
and  to  enforce  covenants  of  the 
lease  in  regard  to  waste,  repairs, 
taxes,  etc.;  Howard  v.  Luce,  171 
Fed.  584  (C.  C.  1909),  bill  to  set 
aside  a  fraudulent  sale  which  oc- 
curred prior  to  a  partnership  and 
also  to  obtain  a  partnership  ac- 
counting; Commonwealth  Trust 
Co.  V.  Frick,  120  Fed.  688  (C.  C. 
1903),  bill  by  assignee  for  benefit 
of  creditors  and  by  executrix  of  the 
assignor  for  an  accounting  by  a 
tenant  in  common  with  the  as- 
signor; Leslie  v.  Leslie,  84  Fed.  70 
(C.  C.  1897),  bill  to  enforce  a  trust 
in  real  estate  and  to  quiet  plain- 
tiff's title  to  the  same  property; 
First  Nat.  Bank  v.  Peavey,  75 
Fed.  154  (C.  C.  1896),  bill  by  plain- 
tiff stockholders  against  defendant 
railroad  on  four  grounds,  of  which 
only  two  were  consistent;  Ameri- 
can Box  Machine  Co.  v.  Crosman, 
57  Fed.  1,012  (C.  C.  1892),  bill  for 
specific  performance  of  patents  and 
for  relief  for  infringement. 

20.  Thus,  in  Richards  v.  Pierce, 
52  Me.  560  (1864),  a  creditor  was 
allowed  to  join  a  claim  for  redemp- 
tion of  one  mortgage  and  cancella- 
tion of  another   on  the  ground  of 


fraud,  the  debtor  and  a  certain 
third  person  being  the  same  per- 
sons interested  in  each  claim;  in 
Stone  V.  Pontiac,  etc.,  R.  Co.,  139 
Mich.  265  (1905),  a  stockholder's 
bill  was  sustained,  though  it  joined 
as  plaintiff  stockholders  whose  in- 
dividual interests  were  different; 
in  Scofield  v.  City  of  Lansing,  17 
Mich.  437  (1868),  the  court  on  de- 
murrer refused  to  dismiss  a  bill 
by  plaintiffs  of  varying  interests, 
although  the  court  said  that  on  the 
hearing  it  might  dismiss  the  bill  if 
it  should  then  appear  that  the  mat- 
ters involved  were  too  complex; 
in  Whitbeck  v.  Edgar,  4  Sandf.  427 
(N.  Y.  1846),  a  bill  to  foreclose 
a  mortgage  and  to  cancel  a  prior 
mortgage  for  fraud,  was  sustained; 
in  Animarium  Co.  v.  Neuman,  98 
Fed.  14  (C.  C.  1899),  and  Dennison 
Mfg.  Co.  V.  Thomas  Mfg.  Co.,  94 
Fed.  651  (C.  C.  1899),  the  same  bill 
was  permitted  to  unite  complaints 
for  trademark  infringement  and 
unfair  competition;  and  in  Pointer 
V.  Pointer,  L.  R.  12  Eq.  552,  the 
bill  was  permitted  to  unite  the  in- 
dividual rights  of  an  executor  with 
his  fiduciary  rights.  But  the  courts 
usually  place  such  decisions  on  the 
ground  that  the  bill  does  not  con- 
tain distinct  causes  of  relief,  i.  e., 
that  the  subject  matters  are  blend- 
ed into  one  general  purpose.  See 
the  cases  in  notes  30  to  37,  post. 


ORIGINAL  BILLS 


205 


§  112.  Multifariousness  proper.  What  is  more  famil- 
iarly understood  by  the  term  multifariousness,  is  tlie 
joinder  of  distinct  subject  matters  in  a  bill  against  several 
defendants,  so  that  a  defendant  can  say,  ''I  am  called 
upon  to  answer  a  bill  containing  two  distinct  subject  mat- 
ters, with  only  one  of  which  I  am  concerned,  and  I  am 
associated  with  other  defendants  not  concerned  with  that 
issue  but  solely  with  the  other. ' '  ^^  The  ground  of  the  ob- 
jection is  the  unfairness  of  throwing  a  useless  burden  of 
litigation  and  expense  upon  such  a  defendant  by  compell- 
ing him  to  answer  a  demand  in  which  he  has  no  interest.^^ 
Examples  of  such  multifariousness  are  given  in  the  foot- 
note.2^ 


21.  Heard's  Eq.  PI.,  p.  41;  Dan- 
iell's  Ch.  Pr.  (6th  Am.  ed.)  335; 
Campbell  v.  Mackay,  1  M.  &  C.  618. 
Indeed,  Lord  Redesdale  limits  the 
vice  of  multifariousness  to  this 
class  of  cases  alone,  i.  e.,  joinder 
of  distinct  matters  against  several 
defendants.  Milford's  Eq.  PI.  by 
Jeremy,  181.  The  old  form  of  de- 
murrer for  multifariousness  also 
shows  that  this  was  what  was  un- 
derstood by  that  term,  since  it  goes 
on  to  state  the  evil  of  uniting  dis- 
tinct matters  in  one  record  where- 
by parties  were  put  to  useless  ex- 
pense, an  objection  which  does  not 
apply  to  simple  misjoinder  of 
causes.     Heard's  Eq.  PI.,  p.  38. 

22.  Story's  Eq.  PI.  (10th  ed.), 
See.  271,  citing  Ward  v.  Northum- 
berland, 2  Anst.  469;  Bouverie 
V.  Prentice,  1  Bro.  Ch.  200;  Berke 
V.  Harris,  Hardr.  337;  Whaley  v. 
Dawson,  2  Seh.  &  Lef.  371. 

23.  Alabama.  Empire  Realty  Co. 
T.  Harton,  57  So.  763  (Ala.  1912), 
bill  to  avoid  execution  sale  of 
plaintiff's  shares  of  stock  and  to 
redress  corporate  wrongs;  Seals  v. 
Pheiffer,   77   Ala.   278    (1884),  bill 


to  set  aside  fraudulent  conveyance, 
compel  settlement  of  accounts  of 
common  law  assignee,  and  for  re- 
ceiver. 

Florida.  Murrell  v.  Peterson,  57 
Fla.  480  (1909),  bill  for  account 
and  for  partition. 

Illinois.  Patterson  v.  Northern 
Trust  Co.,  238  111.  601  (1909),  bill 
for  accounting  and  removal  of  cor- 
poration as  trustee,  for  dissolution 
of  a  second  corporation,  and  for 
other  purposes;  Tagert  v.  Fletcher, 
232  111.  197  (1908),  bill  to  contest 
a  will,  for  partition,  specific  per- 
formance of  a  contract,  and  an  ac- 
counting; Bonney  v.  Lamb,  210  111. 
95  (1904),  bill  inter  alia  for  ac- 
counting, for  removal  of  trustee, 
and  for  adjustment  of  partnership 
matters. 

Maine.  Land  Co.  v.  Lewis,  101 
Me.  620  (1905),  bill  by  corporation 
for  conveyance  of  land  by  con- 
structive trustees,  for  an  account- 
ing for  stock  received  by  some  of 
these  trustees  and  other  defend- 
ants, and  for  an  accounting  of  pro- 
ceeds of  stock  sold  by  still  another 
defendant;  Cheney  v.  Goodwin,  88 


206 


EQUITY  PRACTICE 


If  the  pleader  carefully  observes  the  distinction  above 
set  forth  and  illustrated  between  the  two  branches  of 


Me.  563  (1896),  bill  against  thirty- 
four  defendants  liable  variously  on 
thirty-four  separate  though  similar 
contracts;  Eobinson  v.  Robinson,  73 
Me.  170  (1882),  bill  seeking  a  new- 
deed  from  one  defendant  to  re- 
place a  lost  deed  and  seeking  to 
invalidate  or  establish  as  a  mort- 
gage a  deed  under  which  another 
defendant  holds  the  premises;  Saw- 
yer V.  Noble,  55  Me.  228  (1867), 
bill  for  settlement  of  partnership 
accounts  and  to  set  aside  a  sale  of 
firm  property  by  defendant  partner 
to  defendant  third  person;  McClel- 
lan  V.  Osborn,  51  Me.  118  (1863), 
bill  for  an  account  by  one  part 
owner  of  a  vessel  against  the  oth- 
ers who  became  part  owners  at 
various  times. 

Maryland.  Houghton  v.  Tiffany, 
116  Md.  6.55  (1911),  bill  by  cestui 
and  remaindermen  to  set  aside 
mortgages  on  the  trust  estate  and 
also  to  set  aside  the  beneficiary's 
mortgage  of  his  income  subject 
to  the  mortgage;  Emerson  v.  Gai- 
ther,  103  Md.  564,  8  L.  R.  A.  738 
(1906),  bill  by  receiver  against  di- 
rectors who  became  such  at  various 
times,  alleging  many  breaches  of 
trust,  some  of  which  took  place 
while  some  of  the  defendants  were 
not  connected  with  the  corporation; 
see  also  Gaither  v.  Bauernschmidt, 
108  Md.  1   (1908). 

Massachusetts.  Saltman  v.  Xes- 
son,  201  Mass.  534  (1909),  prayer 
for  redemption  of  a  mortgage  held 
by  one  defendant  in  a  bill  concern- 
ing the  internal  affairs  of  a  re- 
ligious corporation;  Keith  v.  Keith, 
143  Mass.  262  (1887),  bill  for  an 
accounting     of     two     firms     whose 


transactions  were  not  continuous; 
Sanborn  v.  Dwinell,  135  Mass.  236 
(1883),  bill  for  an  accounting 
against  members  of  three  different 
firms,  although  in  all  of  them  plain- 
tiff was  interested,  and  transactions 
had  been  continuous. 

Mississippi.  Banking  Co.  v. 
Humphries,  64  Miss.  258  (1886), 
bill  by  legatees  and  devisees  of 
several  testators  against  executor 
and  various  persons  who  had  dealt 
with  him,  for  accounting,  foreclo- 
sure of  mortgage,  collection  of  as- 
sets due  estate,  and  other  pur- 
poses; Jones  V.  Foster,  50  Miss.  47 
(1874),  bill  by  plaintiff  in  two 
capacities  against  defendants  inter- 
ested in  the  different  capacities; 
Roberts  v.  Starke,  47  Miss.  257 
(1872),  biU  to  establish  resulting 
trust  in  real  estate  held  by  one  de- 
fendant and  to  assert  a  claim 
against  another  defendant  of  a  dis- 
tinct nature;  Thorns  v.  Thoms,  45 
Miss.  263  (1871),  bill  by  wife  pray- 
ing an  account  against  her  husband 
for  separate  property,  and  to  en- 
force her  rights  in  his  homestead 
which  he  had  conveyed. 

New  Jersey.  Miller  v.  Willett, 
71  X.  .J.  £.  741  (1907),  aff.  70  N.  J. 
E.  396  (1905),  bill  by  joint  plain- 
tiffs against  several  defendants 
none  of  whom  was  liable  for  the 
debts  of  any  other;  Van  Hise  v. 
Van  Hise,  61  N.  J.  E.  37  (1900), 
bill  for  an  accounting  from  differ- 
ent defendants  upon  unconnected 
transactions. 

Pennsylvania.  Price  v.  Hurley, 
201  Pa.  606  (1902),  bill  by  firm  of 
brokers  and  customers  against  an- 
other   firm    and   its    customers,    al- 


ORIGINAL  BILLS 


207 


multifariousness,  he  will  have  a  fairly  clear  understand- 
ing of  the  theory  of  multifariousness  as  the  term  is  under- 


leging  conspiracy  to  puff  certain 
stock  whereby  plaintiffs  were  in- 
duced to  purchase  it;  Bovaird  v. 
Keller,  200  Pa.  261  (1901),  bill  for 
settlement  of  partnership  affairs, 
issue  of  corporate  stock  and  an 
accounting,  where  the  partners  and 
others  had  organized  a  corporation; 
Young  V.  Forest  Oil  Co.,  194  Pa. 
243  (1899),  bill  to  enforce  cove- 
nants in  an  oil  lease  against  origi- 
nal lessee  and  subsequent  assignees, 
alleging  a  series  of  trespasses 
"pitched  together  into  hotchpot." 

Rhode  Island.  Peabody  v.  West- 
erly Waterworks,  20  E.  I;  176 
(1897),  bill  against  a  town  and  a 
private  corporation,  setting  forth 
distinct  causes  in  favor  of  the 
plaintiffs  as  taxpayers  and  as  stock- 
holders. 

Virginia.  Stande  v.  Keck,  92  Va. 
544  (1896),  bill  to  set  aside  as 
fraudulent  a  deed  by  a  husband  to 
his  wife,  for  relief  against  another 
defendant  as  to  independent  mat- 
ters, and  to  settle  conflicting  rights 
between  the  plaintiffs;  Buffalo  v. 
Town  of  Pocahontas,  85  Va.  222 
(1888),  bill  by  citizens  against  a 
town  and  a  corporation  which  em- 
ployed the  plaintiffs,  to  enjoin  the 
town  from  enforcing  a  certain  pen- 
alty and  the  corporation  from  de- 
ducting this  penalty  from  the 
wages  of  the  plaintiffs  and  paying 
it  over  to  the  town;  Washington 
City,  etc..  Bank  v.  Thornton,  83  Va. 
157  (1887),  bill  for  decree  against 
an  endorser,  and  for  the  quieting 
of  title  as  to  other  defendants  and 
for  other  purposes;  Sadler  v.  White- 
hurst,  83  Va.  46  (1887),  creditors' 
bill  by  creditors  of  a  partnership. 


of  a  deceased  partner,  and  of  the 
surviving  partner,  to  ascertain  as- 
sets of  each,  and  for  other  pur- 
poses. 

West  Virginia.  Frum  v.  Fox,  58 
W.  Va.  334  (1905),  bill  by  heirs  of 
decedent  to  have  tax  deed  set  aside 
and  dower  of  widow  set  off;  Crick- 
ard  V.  Crouch,  41  W.  Va.  503  (1895), 
bill  to  settle  accounts  of  the  es- 
tates of  various  decedents. 

United  States.  Walker  v.  Pow- 
ers, 104  U.  S.  245,  26  L.  ed.  729 
(1881),  bill  to  establish  title  to  one 
piece  of  property  and  subject  an- 
other piece  to  the  payment  of  cer- 
tain claims;  Backus  v.  Brooks,  195 
Fed.  452  (C.  C.  A.  1912),  bill 
against  corporation  and  certain  in- 
dividuals for  causes  partly  enuring 
to  benefit  of  corporation  and  partly 
to  benefit  of  individual  stockhold- 
ers; Jewell  V.  City  of  Philadelphia, 
186  Fed.  639  (C.  C.  1911),  infringe- 
ment bill  against  three  defendants 
alleging  distinct  causes  growing 
out  of  different  transactions; 
Backus  V.  Brooks.  189  Fed.  922  (C. 
C.  1911),  bill  by  one  corporation 
against  another  for  breach  of  con- 
tract, and  by  individuals  against 
the  defendant  corporation  and 
other  defendants  for  delivery  of 
stock  in  the  defendant  corporation; 
Fichtel  V.  Barthel,  173  Fed.  489  (C. 
C.  1909),  bill  against  several  de- 
fendants for  several  infringements 
of  same  patent;  Goom  v.  Whitman, 
164  Fed.  523  (C.  C.  1908),  bill 
against  a  corporation  and  an  indi- 
vidual to  establish  plaintiff's  title 
in  land  held  by  the  corporation 
and  to  obtain  damages  from  the 
individual  for  a  breach   of  a  con- 


208 


EQUITY  PRACTICE 


stood  today,- ^  but  in  practice  lie  will  find  many  eases 
where  the  defendant  seems  to  be  well  within  the  require- 
ments of  the  general  definition  of  multifariousness  and 
yet  the  objection  is  not  enforced. 


tract  to  which  the  corporation  was 
not  a  party;  Schell  v.  Slat  on  Mfg. 
Co.,  149  Fed.  439  (C.  C.  1906), 
stockholder's  bill  against  corpora- 
tion and  some  of  its  officers;  Leigh 
v.  Lake  St.  EL  B.  Co.,  76  Fed.  662, 
22  G.  C.  A.  465  (1896),  same;  In- 
man  v.  X.  Y.  Interurban  Water  Co., 
131  Fed.  997  (C.  C.  1904),  biU  to 
settle  the  right  of  ownership  of 
certain  shares  and  to  seek  relief 
depending  on  such  ownership;  New 
Hampshire  Sav.  Bank  v.  fiichey, 
121  Fed.  956,  5S  C.  C.  A.  294  (1903), 
bill  against  a  corporation  for  fore- 
closure and  against  its  stockholders 
to  recover  dividends  wrongfully 
paid  them;  Farson  t.  Sioax  City, 
106  Fed.  278  (C.  G.  1901),  biU 
against  a  city  for  an  accounting  of 
a  trust  fund  and  against  city  treas- 
urer and  his  sureties  for  misappro- 
priation of  the  fund;  Central  Nat. 
Bank  v.  Fitzgerald,  94  Fed.  16  (C. 
G.  1899),  creditor's  bill  against  an 
administratrix  and  two  other  de- 
fendants to  set  aside  a  transfer  by 
the  administratrix  to  the  others 
and  to  obtain  relief  on  a  separate 
transaction  against  the  administra- 
trix and  one  only  of  the  other  de- 
fendants. 

24.  As  a  point  of  theory  it 
should  be  noticed  further  that  in 
multifariousness  proper  as  well  as 
in  misjoinder  of  causes,  the  es- 
sence of  the  oflfence  is  still  the 
joinder  of  distinct  causes,  since  if 
the  defendant  who  is  not  interested 
in  one  of  the  distinct  causes  be  dis- 
missed, the  bill  is  stUl  mnltLfarious 
for     the     misjoinder     of     causes. 


though  all  remaining  defendants 
are  equally  interested;  and  if  the 
distinct  cause  in  which  the  defend- 
ant is  not  interested  be  then  strick- 
en out  and  the  bill  thus  reduced  to 
a  single  cause  in  which  they  are 
all  interested,  they  are  all  proper 
parties  and  the  bill  is  unobjection- 
able. While  again,  if  the  subject 
matters  be  reduced  to  the  one 
cause  in  which  all  the  defendants 
but  one  were  interested,  but  in 
which  he  had  no  interest  whatever, 
the  bill  is  stUl  objectionable,  not 
for  multifariousness  but  for  the 
misjoinder  of  a  party  defendant 
which  is  an  entirely  distinct  of- 
fence. In  each  case  it  is  true  the 
defendants  are  improperly  joined 
as  parties;  but  in  multifariousness 
it  is  for  a  want  of  interest  in  a 
distinct  subject  matter  of  the  bill, 
while  in  misjoinder  of  parties  it 
is  for  a  total  want  of  interest  in 
all  the  subject  matters  of  the  bilL 
Indeed,  the  terms  misjoinder  of 
plaintiffs  and  misjoinder  of  causes 
of  action  can  only  tend  to  needless 
confusion.  As  to  plaintiffs  it  will 
be  noticed  that  multifariousness  is 
never  considered  from  their  point 
of  view  but  only  from  that  of  the 
defendants.  It  is  true  that  a  plain- 
tiff as  well  as  a  defendant  is  some- 
times joined  in  a  bill  who  is  in- 
terested in  one  of  the  subject  mat- 
ters of  the  bill  but  has  no  interest 
whatever  in  the  other,  and  that  the 
offence  thus  created  is  entirely  dif- 
ferent from  that  known  as  misjoin- 
der of  plaintiffs  or  total  want  of 
interest;    but    since    the    plaintiff 


ORIGINAL  BILLS 


209 


§  113.  — Causes  must  be  distinct.  Tlie  subject  matters 
joined  must  be  wliolly  distinct.  If  they  are  in  any  way 
connected  or  blended  directly  or  indirectly, — as  for 
instance  if  they  arise  out  of  one  and  the  same  transaction, 
or  series  of  transactions,  forming  one  course  of  dealing, 
all  tending  to  one  end  and  one  connected  story  can  be  told 
of  the  whole,  the  objection  of  multifariousness  will  not  lie. 
This  is  equally  true  in  cases  where  the  same  defendants 
are  interested  in  all  the  causes  of  complaint  set  out  by  the 
plaintiff-^  (i.  e.,  cases  where  the  defendants  claim  that 


joins  voluntarily  while  the  defend- 
ant is  compelled  to  join  and  bear 
the  unfair  burden  caused  by  multi- 
fariousness, the  objection  always 
comes  from  the  defendant's  side, 
and  consequently  the  offence  is  con- 
sidered from  his  point  of  view.  In 
so  considering  it,  therefore,  it  is 
found  that  the  improper  joinder  of 
the  plaintiff  is  due  principally  to 
the  joinder  of  distinct  causes — - 
that  is  the  essence  of  the  difficulty 
with  the  plaintiff  just  as  with  the 
defendant.  The  primary  and  great- 
er difficulty,  therefore,  includes  the 
less,  especially  since  the  improper 
joinder  of  plaintiffs  is  a  minor  of- 
fence anyway  as  compared  with 
such  joinder  of  defendants,  and 
never  fatal  to  a  bill.  Consequently, 
the  joinder  of  distinct  causes  is  the 
burden  of  the  defendant's  com- 
plaint, while  the  improper  connec- 
tion of  the  plaintiff  in  the  case  is 
merely  subsidiary  and  incidental 
thereto;  and  though  it  is  true  that 
both  the  plaintiff  and  defendant 
are  improperly  joined  as  parties, 
yet  it  is  on  entirely  different 
grounds  from  that  which  consti- 
tutes the  defect  properly  known  as 
misjoinder  of  plaintiffs  or  misjoin- 
der of  defendants,  viz.:  a  want  of 
interest  in  a  distinct  part  of  the 
Whltehouse  E.  P.  Vol.  1—14 


case,  and  not  a  total  want  of  inter- 
est in  the  subject  matter  of  the 
bill. 

25.  The  following  are  cases 
where  demurrers  for  multifarious- 
ness were  not  sustained  to  bills 
brought  substantially  against  a  sin- 
gle defendant  or  group  of  defend- 
ants: 

Alabama.  Minge  v.  Green,  58  So. 
381  (Ala.  1912),  bill  for  specific 
performance  and  abatement  of 
price;  Self  v.  Blount  Co.,  124  Ala. 
191  (1899),  bill  against  an  officer 
for  misappropriation  of  two  funds. 

Delaware.  Mahoney  v.  Healy, 
81  A.  583  (Del.  1911),  bill  against 
defendant  in  three  capacities  in 
which  he  held  title  to  various  parts 
of  land  equitably  belonging  to  the 
plaintiff. 

Florida.  Law  v.  Taylor,  58  So. 
344  (Fla.  1912),  bill  to  quiet  title 
and  for  an  accounting;  Brown  v. 
Solary,  37  Fla.  102  (1896),  bill  to 
prevent  future  injury  and  recover 
for  past  injuries. 

Illinois.  Stephens  v.  Collison, 
249  111.  225  (1911),  bill  to  contest 
a  will  and  to  set  aside  a  settlement 
agreement  made  by  the  heir;  Guyer 
V.  Auers,  132  111.  App.  520  (1907), 
bill  for  breaches  on  two  lots  of 
land   of   stipulation   against   liquor 


210 


EQUITY  PRACTICE 


there  is  primarily  a  misjoinder  of  causes),  and  in  cases 


selling;  Chicago  Telephone  Co.  v. 
111.  Mftrs.  Assn.,  106  111.  App.  54 
(1903),  bill  upon  separate  claims 
based  upon  the  same  city  ordi- 
nance. 

Maine.  Weston  v.  Blake,  61  Me. 
452  (1873),  bill  for  an  accounting 
of  a  series  of  transactions. 

Maryland.  Charles  Simons,  etc., 
Co.  V.  Md.  Tel.  &  Tel.  Co.,  99  Md. 
141,  63  L.  R.  A.  727  (1904),  bill  by 
plaintiffs  having  different  contracts 
with  the  same  telephone  company 
to  require  it  to  furnish  service  at 
legal  rates;  Reese  v.  Wright,  98 
Md.  272  (1904),  bill  against  adja- 
cent land-owner  to  enjoin  interfer- 
ence with  plaintiff's  drainage  and 
right  of  way,  and  to  declare  inop- 
erative a  mistake  in  plaintiff's 
deed;  Chew  v.  Glenn,  82  Md.  370 
(1896),  bill  enumerating  a  number 
of  instances  of  breach,  of  the  same 
agreement. 

Massachusetts.  Bay  State  Gas 
Co.  V.  Lawson,  188  Mass.  502 
(1909),  bill  against  a  broker  to  sur- 
charge and  falsify  a  series  of  ac- 
counts rendered  through  a  number 
of  years;  Parker  v.  Simpson,  180 
Mass.  334  (1902),  bill  to  rescind 
numerous  transfers  of  realty  ob- 
tained by  same  plan  of  fraud;  Bliss 
V.  Parks,  175  Mass.  539  (1900),  bill 
by  receiver  against  officers  of  cor- 
poration for  mismanagement,  alleg- 
ing various  instances  of  wrong- 
doing. 

Michigan.  Robinson  v.  De  Luxe, 
etc.,  Co.,  170  Mich.  163  (1912),  bill 
against  directors  for  accounting, 
receiver,  and  restoration  of  assets. 

Mississippi.  Jones  v.  Jones,  99 
Miss.  600  (1911),  widow's  bill 
against  executor  of  husband  for 
accounting  of  various  business  mat- 


ters in  which  the  husband  was  in- 
terested. 

New  Jersey.  Holzer  v.  Thomas, 
69  N.  J.  E.  515  (1905),  bill  for  ac- 
counting against  a  defendant  as 
trustee  under  two  wills  in  which 
plaintiff  was  interested;  Cannon  v. 
Ballard,  62  N.  J.  E.  383  (1905),  bill 
for  an  accounting  on  several  differ- 
ent grounds;  Randolph  v.  Daly,  16 
N.  J.  E.  313  (1863),  creditor's  bill 
to  set  aside  conveyance  for  fraud 
and  to  reach  and  apply  property. 

Pennsylvania.  Cumberland  Val- 
ley, etc.,  Co.'s  Appeal,  62  Pa.  218 
(1869),  bill  by  merchants  against 
a  railroad  regarding  excessive 
freight  tariffs. 

Tennessee.  See  Meredith  v. 
First  Nat.  Bank,  152  S.  W.  1,038 
(Tenn.  1913),  and  Doherty  v.  Ste- 
venson, 1  Tenn.  Ch.  518  (1873), 
citing  the  code   provisions. 

Vermont.  Fife  v.  Cate,  82  Atl. 
741  (Vt.  1912),  bill  for  reformation 
of  contract  which  settled  disputes 
between  parties  and  for  adjustment 
of  the  disputes. 

Virginia.  Farrett  v.  Finch,  107 
Va.  25  (1907),  bill  with  various 
charges  of  fraud  forming  part  of 
the  same  connected  scheme;  Men- 
naly  v.  Straus,  94  Va.  255  (1897), 
creditor's  bill  against  corporation 
and  its  directors  for  several  in- 
stances of  the  wrongdoing  of  the 
directors;  Pack  v.  Whittaker,  110 
Va.  122  (1909),  bill  to  seek  redress 
for  deficiency  in  land  and  for  a 
defect  of  vital  importance  in  the 
title. 

United  States.  United  States  v. 
Beebe,  180  U.  S.  343,  45  L.  ed.  363 
(1901),  bill  against  a  surety  set- 
ting up  claims  on  two  different 
bonds;    Luten   v.   Dover,   etc.,   Co., 


ORIGINAL  BILLS 


211 


where  the  defendants  have  different  interests  ^^  (i.  e., 
cases  where  real  multifariousness  is  claimed  by  the 
defendants).  In  the  latter  class  of  cases,  all  the  defen- 
dants need  not  be  interested  in  the  whole  cause  or  in  all 


189  Fed.  405  (C.  C.  1911),  bill  for 
the  infringement  of  a  number  of 
patents  used  in  a  single  unitary 
structure;  Havens  v.  Burns,  188 
Fed.  441  (C.  C.  1911),  bill  for  in- 
fringement and  for  unfair  competi- 
tion; Onondaga,  etc.,  Co.  v.  Ka-Mo- 
No,  etc.,  Co.,  187  Fed.  832  (C.  C. 
1910),  same;  Vrooman  v.  Penhol- 
low,  179  Fed.  296,  102  C.  C.  A.  484 
(1910),  bill  for  the  infringement 
of  two  closely  related  patents;  Rog- 
ers V.  Penobscot,  etc.,  Co.,  154  Fed. 
606,  83  C.  C.  A.  380  (1907),  bill 
against  defendant  as  an  individual 
and  as  an  officer;  United,  etc.,  Co. 
V.  Wright,  132  Fed.  195  (C.  C. 
1904),  bill  for  an  accounting  by 
an  agent  as  to  several  transactions; 
Moody  V.  Flagg,  125  Fed.  819  (C.  C. 
1903),  bill  against  a  defendant  as 
trustee  of  a  fund  and  also  as  busi- 
ness manager  of  an  association  op- 
erating the  trust  property  for 
breaches  of  trust  in  both  capaci- 
ties; Burlington  Sav.  Bank  v.  City 
of  Clinton,  106  Fed.  269  (C.  C. 
1901),  bill  to  enforce  two  series  of 
bonds  issued  to  cover  the  same  im- 
provement; Lewis  V.  Toper,  47  Fed. 
259  (C.  C.  1891),  bill  for  an  ac- 
counting of  several  partnerships 
composed  of  the  same  members. 

26.  In  the  following  cases  bills 
were  sustained  where  defendants 
had  differing  interests: 

Alabama.  Lott  v.  Mobile  Co.,  79 
Ala.  69  (1885),  bill  against  an  offi- 
cer and  sureties  on  several  bonds. 

Florida.  Robinson  v.  Springfield 
Co.,  21  Fla.  203  (1885),  bill  to  set 
aside    several    fraudulent    convey- 


ances by  the  same  debtor;  Sander- 
son V.  Sanderson,  17  Fla.  820 
(1880),  bill  by  distributees  for  an 
accounting  by  the  administrators 
and  for  the  payment  into  the  es- 
tate of  a  sum  due  from  one  of  the 
administrators  as  a  partner  of  the 
deceased  person. 

Illinois.  North  American  Ins. 
Co.  V.  Yates,  214  111.  272  (1905), 
bill  upon  a  number  of  charges 
growing  out  of  the  same  transac- 
tion; Gray  v.  Bloomington,  etc.,  R. 
Co.,  120  111.  App.  159  (1905),  bill 
to  enforce  certain  contracts  and 
for  other  relief  on  complicated 
facts. 

Maine.  Lockwood  v.  Lawrence, 
77  Me.  297  (1885),  bill  to  enjoin  a 
nuisance  caused  by  the  independent 
acts  of  the  defendants  in  deposit- 
ing refuse  into  the  same  stream 
which  commingled  into  one  indis- 
tinguishable mass;  Warren  v.  War- 
ren, 56  Me.  360  (1868),  bill  for  an 
accounting  of  a  series  of  partner- 
ships whose  affairs  were  closely  in- 
volved; Kennebec,  etc.,  R.  Co.  v. 
Portland,  etc.,  R.  Co.,  54  Me.  173, 
182  (1866),  bill  against  a  railroad 
corporation  and  some  of  its  mem- 
bers in  respect  to  a  series  of  al- 
leged fraudulent  transactions. 

Maryland.  Ruhe  v.  Ruhe,  113 
Md.  595  (1910),  bill  by  beneficiary 
of  constructive  trust  to  enjoin 
ejectment  brought  by  purchaser 
with  notice  from  the  trustee,  to 
have  the  property  reconveyed  to 
the  trustee,  and  to  have  the  trust 
declared;  Murphy  v.  Penniman,  105 
Md.   452    (1907),  bill  by  receivers 


212 


EQUITY  P:RACTICE 


the  causes  of  relief,  provided  the  cause  is  entire  or  the 
subject  matters  are  in  some  way  connected,  since  in  such 
a  case  a  person  may  be  a  very  necessary  party  wlio  has 


against  the  directors  for  non- 
feasauce  ami  misfeasance  in  many 
respects;  Horner  v.  Xitsch,  103  MJ. 
498  (1906),  bill  for  au  accounting 
on  several  usurious  notes;  Finy  v. 
Emmet,  36  Md.  464  (1872),  bill  by 
shareholders  against  other  share- 
holders to  enforce  payment  of  sub- 
scriptions and  contribution  to  debts 
for  which  all  stockholders  liable. 

Massachusetts.  Noble  v.  Joseph 
Burnett  Co.,  208  Mass.  75  (1911), 
bill  for  an  accounting  for  the  in- 
terest of  a  chemist  in  a  certain 
formula  against  a  firm  and  the  cor- 
poration which  succeeded  the  firm; 
Andrews  v.  Smith  Tuttle  Company, 
191  Mass.  461  (1906),  bill  to  en- 
force the  trust  against  the  as- 
signees of  an  insolvent  corporation, 
and  against  a  creditor  to  recover  a 
preference  paid  him  by  the  as- 
signees; Lentz  v.  Prescott,  144 
Mass.  505  (1887),  bill  to  establish 
plaintiff's  title  to  certain  property, 
the  liability  of  certain  persons  to 
pay  him  certain  sums,  and  for  other 
purposes  all  growing  out  of  the 
same  transactions. 

Michigan.  Miller  v.  McLaugh- 
lin, 132  Mich.  234  (1903),  foreclo- 
sure bill  in  which  as  parties  were 
joined  guarantors,  subsequent  mort- 
gagees and  subsequent  grantees; 
Merritt  Township  v.  Harp,  131 
Mich.  174  (1902),  bill  against  offi- 
cers of  several  towns  whose  drains 
and  ditches  were  injuring  the  plain- 
tiff town;  Proctor  v.  Plumer,  112 
Mich.  393  (1897),  bill  to  foreclose 
against  various  part  owners  and  to 
determine  the  respective  rights  of 
the    parties;     Hulbert    v.    Detroit 


Cycle  Co.,  107  Mich.  81  (1895), 
creditor's  bill  against  the  debtor 
and  various  persons  to  whom  he 
had  transferred  distinct  portions 
of  his  property;  Torrent  v.  Hamil- 
ton, 95  Mich.  159  (1893),  bill  to 
foreclose  four  mortgages  given  by 
same  parties  and  now  held  by  one 
mortgagee,  although  different  per- 
sons were  now  interested  in  the 
different  premises. 

Mississippi.  Moseley  v.  Larson, 
86  Miss.  2S8  (1905),  bill  to  enjoin 
an  ejectment  proceeding  and  can- 
cel a  fraudulent  deed;  Hardie  v. 
Bulger,  66  Miss.  577  (1889),  bill  by 
stockholders  to  cancel  various  con- 
veyances made  under  invalid  reso- 
lutions of  the  directors;  State  v. 
Brown,  58  Miss.  835  (1881),  bill 
against  sureties  on  two  different 
bonds   given   by  same   officer. 

New  Hampshire.  Smith  v.  Bank 
of  New  England,  69  N.  H.  254 
(1898),  bill  against  various  per- 
sons interested  in  same  trust  fund; 
Eastman  v.  Savings  Bank,  58  N.  H. 
421  (1878),  bill  against  various 
persons  concerned  in  the  misman- 
agement of  a  bank,  for  a  receiver, 
the  collection  of  the  assets,  and 
other  relief. 

New  Jersey.  Shutts  v.  United, 
etc.,  Co.,  67  X.  J.  E.  225  (1904), 
bill  for  the  accounting  of  secret 
profits  on  several  transactions  in 
which  different  parties  defendant 
were  interested;  Schlicher  v.  Vogel, 
59  N.  J.  E.  351  (1900),  bill  to  set- 
tle partnership  accounts  and  re- 
cover an  amount  fraudulently 
transferred  to  the  wife  of  a  part- 
ner; Xaumberg  v.  See,  56  X.  J.  E. 


ORIGINAL  BILLS 


213 


only  a  partial  interest.    It  is  sufficient  if  each  party  has 
an  interest  in  some  matters  in  the  suit  and  they  are  con- 


453  (1898),  aff.  55  N.  J.  E.  240 
(1897),  bill  against  many  persons 
in  order  to  realize  on  assets  due 
and  to  charge  delinquent  stock- 
holders. 

Ehode  Island.  Brown  v.  Til  ley, 
25  R.  I.  579  (1904),  bill  against 
heirs  and  grantees  of  the  plaintiff 's 
deceased  husband,  to  enforce  pay- 
ment of  certain  annuities. 

Virginia.  Baker  v.  Berry  Hill 
Co.,  109  Va.  776  (1909),  bill  against 
various  persons  who  had  partici- 
pated in  a  connected  scheme  to  de- 
fraud the  plaintiffs  out  of  their  in- 
terest in  a  certain  corporation; 
School  Board  v.  Farnish,  92  Va. 
156  (1895),  bill  against  adminis- 
trator and  sureties  of  a  county 
treasurer  to  administer  estate,  set- 
tle accounts,  and  get  personal  de- 
crees; Brown  v.  Buckner,  86  Va. 
612  (1890),  bill  for  the  settlement 
of  an  estate;  Almond  v.  Wilson,  75 
Va.  613  (1881),  bill  to  set  aside 
fraudulent  transfers  by  same 
debtor  to  several  other  defendants. 

West  Virginia.  Depue  v.  Miller, 
65  W.  Va.  120  (1909),  bill  by  heirs 
to  establish  title  in  several  tracts 
of  land;  Turk  v.  Hevener,  49  W. 
Va.  204  (1901),  creditor's  bill  to 
settle  estate,  charge  administrator 
personally,  and  follow  certain 
property  into  the  hands  of  fraudu- 
lent grantees;  .Johnson  v.  Sanger, 
49  W.  Va.  405  (1901),  bill  in  regard 
to  various  interests  in  the  same 
piece  of  land;  Crumlish  v.  Shenan- 
doah, etc.,  R.  Co.,  28  W.  Va.  623 
(1886),  stockholders'  bill  to  col- 
lect and  distribute  the  assets. 

United  States.  Mullen  v.  U.  S., 
224  U.  S.  448,  56  L.  ed.  834  (1912), 


bill  to  cancel  Indian  conveyances; 
Bitterman  v.  Louisville,  etc.,  R.  Co., 
207  U.  S.  205,  52  L.  ed.  171  (1907), 
bill  against  ticket  scalpers;  Wy- 
man  v.  Wallace,  201  U.  S.  244,  50 
L.  ed.  742  (1906),  creditor's  bill  to 
close  an  insolvent  national  bank, 
ascertain  claims  against  it,  for  en- 
forcement of  trusts,  distribution  of 
proceeds,  and  enforcement  of  liabil- 
ity of  stockholders;  James  v.  City 
Investment  Co.,  188  Fed.  513  (C.  C. 
1911),  bill  to  set  aside  fraudulent 
deeds  and  subsequent  deeds  by  the 
fraudulent  grantees;  Howard  v. 
National  Tel.  Co.,  182  Fed.  215,  (C. 
C.  1910),  stockholders'  bill;  Hult-. 
berg  V.  Anderson,  170  Fed.  657  (C. 
C.  1909)  creditors'  bill  to  recover 
property  conveyed  in  fraud  of  cred- 
itors to  various  persons;  Rum- 
barger  v.  Yokum,  174  Fed.  55  (C. 
C.  1909),  bill  against  the  lienhold- 
crs  on  a  certain  piece  of  property 
to  adjust  and  settle  the  liens;  .Jones 
\.  Missouri,  etc.,  Co.,  144  Fed.  765, 
75  C.  C.  A.  631  (C.  C.  1906),  minor- 
ity stockholders'  bill;  Fidelity,  etc., 
Co.  V.  Fidelity  Trust  Co.,  143  Fed. 
152  (C.  C.  1906),  bill  against  two 
depositaries  of  embezzled  funds; 
South  Penn.  Oil  Co.  v.  Gulf  Creek, 
etc.,  Co.,  140  Fed.  507  (C.  C.  1905). 
bill  to  enjoin  two  actions  at  law 
relating  to  same  subject  matter; 
Kilgore  v.  Norman,  119  Fed.  1006 
(C.  C.  1902),  bill  by  heirs  of  a  hus- 
band and  wife  in  respect  to  various 
titles  to  recover  land  from  the  de- 
fendants claimed  in  various  rights; 
Bidwell  V.  Haft',  103  Fed.  362  (C. 
C.  1900),  creditors'  bill  to  reach 
real  estate  and  to  cancel  tax  deeds; 
Norcross    v.    Nathan,    99   Fed.    414 


214  EQUITY  PRACTICE 

nected  with  the  others.-"  The  inquiry  is  not  whether  each 
defendant  is  connected  with  every  branch  of  the  cause 
but  whether  the  plaintiff's  bill  seeks  relief  in  respect  of 
matters  which  are  in  their  nature  separate  and  distinct. 
It  follows  that  a  bill  is  not  rendered  multifarious  by  join- 
ing two  good  causes  of  complaint  growing  out  of  the  same 
transactions,  where  all  the  defendants  are  interested  in 
the  same  claim  of  right  and  where  the  relief  asked  for  in 
relation  to  each  is  of  the  same  general  character;  -^  or 
when  the  object  of  the  bill  is  single, — to  establish  and  to 
obtain  relief  for  one  claim  in  which  all  the  defendants  may 
be  interested,  although  they  may  have  different  and  sepa- 
rate interests.-^ 

§  114.  — Each  cause  must  be  sufficient.  If  either  of  the 
causes  of  relief  set  forth  in  the  bill,  upon  its  own  allega- 
tions, is  insufficient  to  entitle  the  plaintiff  to  relief,  or  if 
no  relief  is  asked  in  respect  to  a  claim  distinct  from  the 
principal  object  of  the  bill,  then  upon  demurrer,  there 
being  but  one  sufficient  claim  upon  which  relief  is  asked, 
that  will  not  fail  because  another  which  is  insufficient  or  of 
a  distinct  nature  is  joined  with  it.^'^    The  other  claim  in 

(C.  C.  1900),  bill  by  trustee  in  29.  Story's  Eq.  PI.  (10th  ed.) 
bankruptcy  against  two  defendants  Sec.  285;  Dan.  Ch.  Pr.  (6th  Am. 
who  had  obtained  the  bankrupt's  ed.),  p.  342;  Campbell  v.  Mackay, 
property  by  fraudulent  convey-  1  M.  &  C.  603;  Ward  v.  Northum- 
ances;  Barcus  v.  Gates,  89  Fed.  783,  berland,  2  Anst.  469. 
33  C.  C.  A.  337  (1898),  stock-  30.  Alabama.  Letohatchie  Bap- 
holders'  bill.  tist    Church    v.    Bullock,    133    Ala. 

27.  Story's  Eq.  PI.  (10th  ed.)  543  (19OI);  McGriff  v.  Alford,  111 
Sec.  271a,  citing  Addison  v.  Walker,  ^la.  634  (1895);  Carpenter  v.  Hall, 
4  Y.  &  Coll.  442;  Parr  v.  Atty.  Gen.  jg  Ala.  439   (1850). 

8  CI.  &  Fin.  435.  Florida.     Eitch   v.  Eichelberger, 

28.  Story's    Eq.    PI.    (10th    ed.)       13  Fla.  170  (1869-71). 

Sec.    284,   citing   Boyd  v.    Moyle,   2  -r^         „ 

/-.  n    01c      o     Au  J?  JM»  Illinois.     Sturgeon   v.   Burrall,   1 

Coll.  316.     So  the  owners  of  diiier-  _       *_^  ' 

ent  mills  or   of  separate  tracts  of  '      P^'           ^         ^' 

land   through    which    a    stream    of  Maine.      Richards   v.   Pierce,   52 

water  flows,  may  join  as  plaintiffs  ^^-  ^62  (1864). 

in  a  bill  to  restrain  its  diversion.  Maryland.    Murphy  v.  Penniman, 

Ballou  V.  Hopkins,  4  Gray  (Mass.)  105  Md.  452,  121  Am.  St.  Rep.  583 

328    (1855).  (1907);    Reese   v.   Wright,   98   Md. 


ORIGINAL  BILLS 


215 


such  case  is  treated  as  surplusage.  Conversely,  the  addi- 
tion merely  of  a  superfluous  prayer  is  surplusage  and  does 
not  render  the  bill  demurrable  for  multifariousness.^^ 

§  115.  Single  cause  must  not  be  divided.  A  bill  is  also 
demurrable  for  just  the  converse  of  the  fault  of  multi- 
fariousness, viz.:  the  undue  division  of  a  single  cause. 


272  (1904);  Union  Bank  v.  Herr, 
2  M(l.  Ch.  460   (1849). 

Massachusetts.  Old  Dominion, 
etc.,  Co.  V.  Bigelow,  188  Mass.  315 
(1905).  But  see  Mesisco  v. 
Giuliana,  190  Mass.  352  (1906), 
which  seems  contra. 

Michigan.  Wheeler  v.  Ocker, 
etc.,  Mfg.  Co.,  162  Mich.  204 
(1910);  Stone  v.  Pontiac,  etc.,  R. 
Co.,  139  Mich.  265  (1905);  Black- 
ford V.  Olmstead,  140  Mich.  583 
(1905);  Wright  v.  Roethisberger, 
116  Mich.  241  (1898). 

Mississippi.  Champenois  v.  Fort, 
45  Miss.  355  (1871);  Pleasants  v. 
Glasscock,  S.  &  M.vCh.  17   (1843). 

New  Jersey.  Knikel  v.  Spitz,  74 
N.  J.  E.  581  (1908). 

Pennsylvania.  Blankenburg  v. 
Black,  200  Pa.  629   (1901). 

Rhode  Island.  Arnold  v.  Arnold, 
9  R.  I.  397  (1870);  Sayles  v.  Tib- 
bitts,  5  R.  I.  79   (1857). 

Virginia.  Strother  v.  Strother, 
106  Va.  420  (1907);  Hutchinson  v. 
Maxwell,  100  Va.  170  (1902);  Jor- 
dan V.  Liggan,  95  Va.  616   (1898). 

West  Virginia.  Wellsburg,  etc., 
R.  Co.  V.  Traction  Co.,  56  W.  A' a. 
18  (1904);  Smith  v.  Patton,  12  W. 
Va.  541  (1878). 

United  States.  In  the  Federal 
courts,  it  has  been  held  that  the 
joinder  of  a  legal  demand  or  right 
of  action  with  an  equitable  right 
of  action  constitutes  multifarious- 
ness. Motley  Co.  v.  Detroit  Steel, 
etc.,  Co.,  130  Fed.  396  (C.  C.  1904) ; 


Hudson  V.  Wood,  119  Fed.  764  (C. 
C.  1903).  But  in  both  of  these 
cases  the  legal  demand  was  against 
but  one  of  the  defendants.  On  the 
other  hand  in  Haight  &  Freese  Co. 
V.  Weiss,  156  Fed.  328,  84  C.  C.  A. 
224  (1907),  it  was  held  that  an 
action  involving  both  a  legal  and 
an  equitable  demand  cannot  be  dis- 
missed on  the  ground  of  an  ade- 
quate remedy  at  law. 

31.  Alabama.  Dargin  v.  Hew- 
litt,  115  Ala.  510  (1896);  McCarthy 
V.  McCarthy,  74  Ala.  546  (1883). 

Michigan.  Wright  v.  Roethis- 
berger, 116  Mich.  241  (1898);  Ham- 
mond V.  Michigan  State  Bank, 
Walk.  Ch.   (Mich.)   214   (1843). 

New  Hampshire.  Carter  et  al  v. 
Hano  Co.,  72  N.  H.  549   (1904). 

New  Jersey.  Durling  v.  Ham- 
mer, 20  N.  J.  E.  220   (1869). 

Virginia.  Suavely  v.  Harkrader, 
29  Grat.  (Va.)   112   (1877). 

West  Virginia.  Jones  v.  Re^l, 
12  W.  Va.  350,  29  Am.  Rep.  455 
(1878). 

United  States.  De  Neufville  v. 
New  York,  etc.,  R.  Co.,  81  Fed. 
10,  26  C.  C.  A.  306  (1897). 

A  fortiori,  proper  alternative  re- 
lief may  be  asked.  See  §  120  be- 
low. 

Discrepancies  between  allega- 
tions and  prayer  do  not  render  a 
bill  multifarious.  Townsend  v. 
Vanderwerker,  160  U.  S.  171,  40 
L.  ed.  383  (1895). 


216 


EQUITY  PRACTICE 


thereby  creating  an  unnecessary  multiplicity  of  suits, 
which  it  is  the  jDolicy  of  courts  to  avoid.  Thus  a  party 
will  not  be  permitted  to  bring  a  bill  for  part  of  the  entire 
account  when  he  can  bring  suit  for  the  whole.^- 

§  116.  Objection  of  multifajiousness — How  taken.  The 
proper  wa}'  to  take  advantage  of  multifariousness  in  a  bill 
is  by  way  of  demurrer.''"  If  the  cause  is  allowed  to  go  to 
hearing  without  demurrer,  the  objection,  strictly  speak- 
ing, is  then  waived  by  the  parties,  since  the  greater  part 
of  the  burden  thrown  on  a  defendant  by  multifariousness 
comes  in  the  pleadings  in  defense,  required  before  the 
hearing."'^    If  raised  at  the  hearing,  however,  the  court 


32.  Story's  Eq.  PI.  (lOtli  ed.) 
Sec.  287,  citing  Cooper's  Eq.  PI. 
184-5;  Puiefoy  v.  Purefoy,  1  Vern. 
28;   Mitf.  Eq.   PI.  by  Jeremy,  183. 

33.  Florida.  Murrell  v.  Peterson, 
57  Fla.  4S0  (1909). 

Illinois.  Whiteside  Co.  v.  Bur- 
chell,  ;il  111.  68   (186.3.). 

Maine.  Robinson  v.  Robinson, 
73  Me.  170  (1882);  Sawyer  v. 
Noble,  .55  Me.  227  (1867). 

Maryland.  Emerson  v.  Gaither, 
103  Md.  564,  8  L.  R.  A.  (N.  S.)  738 
(1906). 

Massachusetts.  Saltman  v.  Nes- 
son,  201  Mass.  534  (1909);  Marvel 
V.  Cobb,  200  Mass.  293  (1908). 

Michigan.  Torrent  v.  Hamilton, 
95  Mich.  159  (1893). 

Mississippi.  Bell  v.  Clark,  71 
Miss.  603   (1893). 

Virginia.  Dunn  v.  Dunn,  26 
Gratt.  291   (1875). 

West  Virginia.  Cecil  v.  Karnes, 
61  W.  Va.  543  (1907);  Petty  v. 
Fogle,  16  W.  Va.  497  (1880). 

United  States.  Robinson  v.  Ins. 
Co.,  175  Fed.  629  (C.  C.  1909); 
Emmons  v.  National,  etc.,  Assn., 
135  Fed.  689,  68  C.  C.  A.  327 
(1905). 


34.  Alabama.  Code  of  1907,  See. 
3095. 

Illinois.  Ring  v.  Lawless,  190  111. 
520  (1901);  Henderson  v.  Cum- 
niings,  44  111.   325    (1867). 

Maryland.  Wilmer  a-.  Placide, 
118  Md.  305  (1912);  Ashton  v. 
Ashton,  35  Md.  496  (1871). 

Massachusetts.  Crocker  v.  Dil- 
lon, 133  Mass.  91  (1882). 

Michigan.  Hinkley  v.  Bishop, 
152  Mich.  258  (1908);  Miner  v. 
Wilson,  107  Mich.  57  (1895). 

Mississippi.     Code,  Sec.  599. 

New  Jersey.  Pierce  v.  Old  Do- 
minion Min.  Co.,  67  N.  J.  E.  399 
(1904);  Sanborn  v.  Adair,  27  N. 
J.  E.  425,  aff.  29  N.  J.  E.  338 
(1876);  Rockwell  v.  Morgan,  13  N. 
J.  E.  384  (1861). 

Pennsylvania.  Persh  v.  Quiggle, 
57  Pa.  247   (1868). 

Tennessee.  King  v.  Patterson, 
164  S.  W.  119  (1913);  Ilinton  v. 
Cole,  3  Humph.  (Tenn.)  656  (1842). 

Vermont.  Wade  v.  Pulsifer,  54 
Vt.  45  (18S1). 

United  States.  Herndon  v.  Chi- 
cago, etc.,  R.  Co.,  218  U.  S.  135,  54 
L.  ed.  970  (1910);  Chicago,  etc., 
Co.    V.    Perry,    etc.,    Co.,    170   Fed. 


ORIGINAL  BILLS 


217 


may  consider  it,  in  its  discretion,  or  the  court  may  dismiss 
the  bill  of  its  own  accord,  without  the  objection  having 
been  raised  by  a  defendant.^^  Ordinarily  where  the  objec- 
tion of  multifariousness  is  sustained,  the  court  will  allow 
the  plaintiff  to  amend  by  omitting  the  objectionable  alle- 
gations.^® 


968  (C.  C.  1909);  West  Pub.  Co.  v. 
Edward  Thompson  Co.,  169  Fed. 
833  (C.  C.  1909). 

Going  to  hearing  after  demurrer 
for  multifariousness  overruled 
waives  the  objection.  Bird  v.  Bird,- 
218  111.  158  (1905);  Graves  v.  Ash- 
burn,  215  U.  S.  331,  54  L.  ed. 
(1909). 

And  so  does  going  to  hearing  on 
one  matter  only  after  demurrer  for 
multifariousness  has  been  inter- 
posed but  not  acted  upon.  Botts  v. 
Betts,  18  Ala.  787  (1850). 

An  objection  of  multifariousness 
should  not  be  taken  for  the  first 
time  at  the  hearing  before  the  mas- 
ter. Cobb  V.  Fogg,  166  Mass.  466 
(1896). 

The  objection  cannot  be  taken  by 
motion.  Harland  v.  Persons,  93 
Ala.  273  (1890).  There  have  been 
dicta  however,  that  the  objection 
of  multifariousness  may  be  taken 
by  plea  or  answer.  Labadie  v. 
Hewitt,  85  111.  341  (1877);  Bell  v. 
Woodward,  42  N.  H.  181  (1861); 
Swayze  v.  Swayze,  9  N.  J.  E.  273 
(1853);  Ranger  v.  Champion,  etc.. 
Press  Co.,  52  Fed.  611  (C.  C.  1892). 

But  the  answer  must  be  special. 
Veghte  V.  Raritan  Co.,  19  N.  J.  E. 
142   (1868). 

35.  Mattair  v.  Payne,  15  Fla. 
682  (1876);  Darcey  v.  Lake,  46 
Miss.  109  (1872);  Hickman  v. 
Cooke,  3  Humph.  (Tenn.)  640 
(1842);  Dennis  v.  Justus,  79  S.  E. 
1077   (Va.  1913);  W^illis  v.  Sewall's 


Point,  etc.,  Co.,  89  Va.  708   (1893). 

But  early  cases  to  the  same  effect 
in  Alabama, — Bean  v.  Bean,  37 
Ala.  17  (1860);  Felder  v.  Davis,  17 
Ala.  425  (1850), — are  doubtless 
overruled  by  Code  of  1907,  Sec. 
3095. 

36.  Taylor  v.  Dwyer,  131  Ala.  90 
(1901);  Price  v.  Union  Land  Co., 
187  Fed.  886,  110  C.  C.  A.  20 
(1911).  And  see  in  general  cases 
under  Chapter  XI,  section  240,  post, 
p.  418. 

The  plaintiff  will  sometimes  be 
required  to  elect  as  to  the  ground 
on  which  he  will  proceed.  Junkins 
V.  Lovelace,  72  Ala.  803  (1882); 
Belt  V.  Bowie,  65  Md.  350  (1886); 
Murrell  v.  Jones,  40  Miss.  565 
(1866);  Price  v.  Land  Co.,  187  Fed. 
886,  110  C.  C.  A.  20  (1911).  In 
Socola  V.  Grant,  15  Fed.  487  (C. 
C.  1883),  the  court  overruled  de- 
murrer but  ordered  inconsistent  al- 
legations to  be  stricken  out. 

Under  the  chancery  rules  of 
Maryland,  the  bill  will  be  dis- 
missed as  to  the  improper  matter. 
Reckefus  v.  Lyon,  69  Md.  589 
(1888). 

Under  the  Mississippi  Code,  Sec. 
598,  and  the  Tennessee  Code  of  1858, 
Sec.  4326,  the  court  may  permit 
amendments  in  the  form  of  new 
bills,  with  new  parties  if  necessary, 
upon  which  new  process  need  not 
issue  as  against  defendants  already 
before   the   court. 


218  EQUITY  PRACTICE 

Where  a  joint  claim  against  two  defendants  is  improp- 
erly joined  with  a  separate  claim  against  one  of  them, 
both  or  either  may  demur  to  the  bill  for  multifarious- 
ness.^" But  multifariousness  as  to  one  defendant  consti- 
tutes no  ground  for  objection  by  the  other  defendants  who 
are  interested  in  all  the  causes  joined.^^  The  objection 
must  be  raised  by  the  party  or  parties  on  whom  the  bur- 
den of  multifariousness  falls. 

§  117.  The  prayer  for  relief.  Having  thus  stated  all 
the  essential  facts  constituting  his  grounds  for  relief,  the 
next  duty  of  the  pleader  is  to  indicate  to  the  court  just 
what  kind  of  relief  he  desires.  This  is  the  function  of  the 
prayer  for  relief. 

The  prayer  for  relief  is  divided  into  two  parts,  viz.: 
the  prayer  for  specific  relief  and  the  prayer  for  general 
relief;  and  a  bill  without  either  of  these  is  fatally  defec- 
tive.^^ In  general  chancery  practice  a  bill  would  ordi- 
narily be  held  sufficient  if  it  contained  either,"**'  but  by  the 
modern  practice  a  special  prayer  is  probably  always 
necessary. 

§  118.  Special  relief.  The  prayer  for  special  relief 
should  contain  an  accurate  specification  of  all  the  orders 
which  the  plaintiff  wishes  to  have  inserted  in  his  decree. 
In  complicated  cases  the  framing  of  this  portion  of  the 
bill  requires  considerable  care.    The  prayer  may  contain 

37.  story's  Eq.  PI.  (10th  ed.)  40.  Story's  Eq.  PI.  (10th  ed.) 
Sec.  284a,  citing  Boyd  v.  Hoyt,  5  See.  41,  citing  Wilkinson  v.  Beal, 
Paige  65  (N.  Y.  1835).  4    Mad.    408;    Cook   v.    Martyn,    2 

38.  Emerson  v.  Gaither,  103  Md.  Atk.  2;  Grimes  v.  French,  2  Atk. 
564,  8  L.  R.  A.  (X.  S.)  738  (1906):  141;  Topham  v.  Constantine, 
Bermes  v.  Frith,  38  N.  J.  E.  88  Tamlyn  135;  Manaton  v.  Moles- 
(1884);  Buerck  v.  Imhaeuser,  8  worth,  1  Eden  26.  Dan.  Ch.  Pr. 
Fed.  457  (C.  C.  1881);  Story's  Eq.  (6th  Am.  ed.),  p.  378  n.  5,  citing 
PI.  (10th  ed.)  Sec.  544,  citing  Whit-  inter  alia,  Colton  v.  Ross,  2  Paige 
beck  V.  Edgar,  2  Barb.  Ch.  (N.  Y.)  (X.  Y.)  396  (1831) ;  Lloyd  v.  Brew- 
106  (1847).  ster,  4  Paige   (X.  Y.)   537    (1834). 

39.  Schwitters  v.  Barnes,  157  111.  But  see  §  119,  post,  p.  220  et  seq., 
App.   381    (1910);   Perry  v.   Perry,  as  to  the  modern  practice. 

65  Me.  399  (1876). 


ORIGINAL  BILLS  219 

as  many  branches  or  forms  of  relief  as  the  pleader  may 
deem  necessary  to  a  complete  remedy,  and  like  the  stat- 
ing part  it  should,  when  there  are  several  branches,  be 
divided  into  paragraphs  numbered  seriatim,  one  for  each 
form  of  relief  sought.^  ^  Various  forms  of  special  prayer 
will  be  found  among  the  forms  in  the  third  volume. 

The  fundamental  rule  in  thus  framing  the  prayer  for 
special  relief  is  that  the  relief  asked  for  must  be  in  a 
conformity  with  the  case  made  by  the  bill.^-  This  rule 
rests  on  the  same  principle  that  requires  certainty  in  the 
allegations,  viz.:  that  the  defendant  must  not  be  left  in 
doubt  as  to  the  case  he  is  to  meet,  which  would  be  the 
result  if  the  bill  made  one  case  and  the  prayer  sought 
relief  applicable  to  another  case.  It  is  especially  impor- 
tant that  this  rule  should  be  observed  where  the  special 
prayer  is  the  only  prayer  of  the  bill,  since  in  such  case  if 
the  special  relief  prayed  for  cannot  be  granted  on  the  case 
made  by  the  bill,  no  relief  at  all  can  be  had  except  by 
amendment  of  the  bill.^^  Consequently  although  a  special 
prayer  alone  is  sufficient  in  all  cases  without  a  general 
prayer,  it  is  always  safer  to  add  the  latter,  since  in  case 
the  special  prayer  fails  the  difficulty  may  be  remedied 
under  the  prayer  for  general  relief,  as  will  be  seen  in  the 
following  section.^^ 

41.  That  the  prayers  should  be  Eelief  for  which  no  foundation  is 
divided  into  numbered  paragraphs  laid  in  the  allegations  of  the  bill 
is  expressly  provided  by  the  rules  cannot  be  obtained  merely  by  the 
of  some  jurisdictions:  Maryland,  prayer.  Wade  v.  Moore,  63  So.  582 
Code,  Sec.  146,  Eq.  Rule  15;  Mich-  (Fla.  1913);  Bushnell  v.  Avery,  121 
igan,  Eq.  Rule  1;  Pennsylvania,  Eq.  Mass.  148  (1876). 

Rule  17.  43,  Driver    v.    Fortner,    5    Port. 

42.  Heard's  Eq.  PI.  p.  44.  (Ala.)   9   (1837);  Loggie  v.  Chand- 
A  special  prayer  substantially  de-       ler,    95    Me.    220    (1901);    Halsted 

manding  the  appropriate  relief  un-  '^"-   Meeker's   Ex.,   18   N.  J.  E.   136 

der  the  allegations  in  the  bill  has  (1866);    Goff  v.   Price,  42  W.  Va. 

been  held  sufficient  although  tech-  384  (1896). 

nically  lacking  form  and  precision.  44.  In  French  v.  Commercial  N. 

McDaniel  v.  Barkerville,  13  Gratt.  Bank,    79    Dl.    App.    110    (1898)    a 

(Va.)   228    (1856);   Corville  v.  Gil-  prayer   that   defendant   "stand   to, 

man,   13   W.   Va.   314,   326    (1878).  abide  and  perform  such  order"  etc., 


220 


EQUITY  PRACTICE 


§  119.  General  relief.  The  prayer  for  general  relief 
is  a  prayer  for  such  other  and  further  relief  as  the  nature 
of  the  case  may  require,  or  as  to  the  court  may  seem 
jjroper.  \'arious  forms  of  this  prayer  will  be  found  in  the 
third  volume.  It  served  two  purposes  in  general  chancery 
practice.  First  it  might  be  the  sole  prayer  of  the  bill  and 
the  particular  relief  desired  might  be  asked  for  at  the 
bar.^^  But  a  prayer  for  general  relief  alone  would  proba- 
bly not  now  be  held  sufficient,  even  in  states  not  having 
chancery  rules  requiring  that  the  prayer  shall  state  the 
specific  relief  sought. ■"•  Furthermore  it  has  always  been 
true  that  special  and  provisional  orders  or  writs  must  be 
prayed  for  specially  and  cannot  be  granted  under  the 
general  prayer.^"    Thus  a  temporary  injunction  will  not 


was  held  sufficient  as  a  prayer  for 
general  relief. 

The  prayer  for  general  relief  is 
unnecessary  in  Massachusetts.  R. 
L.  Ch.  159,  Sec.  12;  Allen  v.  French, 
180  Mass.  487  (1902);  White  v. 
Curtis,  2  Gray  (Mass.)  467   (1854). 

45.  Story's  Eq.  PI.  (10th  ed.) 
§  41.     See  note  40,  ante,  p.  218. 

In  Cook  V.  Martyn,  2  Atk.  3, 
Lord  Hardwieke  is  reported  to 
have  said  that  ' '  praying  general 
relief  is  sufficient  though  the  plain- 
tiff should  not  be  more  explicit  in 
the  prayer  of  the  bill  and  Mr.  Rob- 
ins, a  very  eminent  counsel,  used 
to  say  general  relief  was  the  best 
prayer  next  to  the  Lord's  prayer." 

46.  See  for  instance  Norton  v. 
Hixon,  25  111.  439,  79  Am.  Dec.  338 
(1861);  Wilson  v.  Min.  Co.,  174 
Fed.  317,  98  C.  C.  A.  189  (1909). 

In  the  following  states  the  rules 
require  a  special  in  addition  to  the 
general  prayer.  Delaware,  Eq. 
Rule  20;  Florida,  Eq.  Rule  25; 
Maine,  Eq.  Rule  4;  Maryland,  Code, 
Sec.  146,  Eq.  Rule  15;  Michigan, 
Eq.   Rule   1;   New   Hampshire,   Eq. 


Rule  81;  Pennsylvania,  Eq.  Rule 
17;  Rhode  Island,  Eq.  Rule  7;  Ten- 
nessee, Code,  Sec.  6123;  Vermont, 
Eq.  Rule  5. 

47.  Daniel's  Ch.  Pr.,  (6th  Am. 
ed.),  p.  388,  citing  Savory  v.  Dyer. 
Amb.  70;  Walker  v.  Devereaux,  4 
Paige  (N.  Y.)  248;  Wright  v.  At- 
kyns,  1  V.  &  B.  313.  The  special 
prayer  for  temporary  relief  may 
of  course  be  added  by  amendment. 
Jacob  V.  Hall,  12  Ves.  458;  Wood 
v.  Beadell,  3  Sim.  273;  Hinckley  v. 
Haines,  69  Me.  76  (1879)  ;  Del. 
Canal  Co.  v.  Camden  R.  Co.,  16  N.  J. 
E.  379   (1863). 

In  some  states,  the  rules  ex- 
pressly require  that  special  orders 
should  be  particularly  prayed  for. 
Delaware,  Eq.  Rules  21,  61;  Flor- 
ida, Eq.  Rule  25;  Maine,  R.  S.  Ch. 
79,  Sec.  35;  Maryland,  Code,  art. 
16,  Sec.  146,  Eq.  Rule  16;  New 
Hampshire,  Eq.  Rule  81;  Pennsyl- 
vania, Eq.  Rule  17;  Rhode  Island, 
Eq.  Rule  7;  Vermont,  Eq.  Rule  5. 
See,  Gaines  v.  Russ,  50  Fla.  ;!17, 
(1910);  Newark  v.  Erie  R.  Co., 
76  N.  J.  E.  317  (1909). 


ORIGINAL  BILLS 


221 


ordinarily  be  granted  under  a  prayer  for  general  relief  but 
must  be  specifically  prayed  for.^^  So  with  the  writ  ne 
exeat  to  restrain  a  defendant  from  leaving  the  state, 
where  this  writ  is  sought  at  the  time  of  filing  the  bill.^^ 
Secondly,  the  prayer  for  general  relief  has  always  been 
used  in  addition  to  special  prayers,  to  aid  and  supplement 
them  by  expanding  the  special  relief  sought,  with  further 


A  prayer  for  an  injunction, 
though  not  for  a  temporary  injunc- 
tion, will  sustain  the  issue  of  the 
latter.  Shipley  v.  Western,  etc., 
R.  Co.,  99  Md.  115  (1904). 

A  mandatory  injunction  must  be 
specially  prayed  for.  Am.  Fine 
Art  Co.  V.  Voigt,  103  111.  App.  659 
(1903). 

48.  Lewiston  Falls,  etc.,  Co.  v. 
Franklin  Co.,  54  Me.  504  (1867); 
see  also  Burnham  v.  Kempton,  44 
N.  H.  78  (1862). 

This  rule  is  however  inapplicable 
to  permanent  injunctions,  which 
may  be  granted  at  the  hearing 
without  special  prayer  therefor  in 
the  bill.  Dan.  Ch.  Pr.  (6th  Am, 
ed.)  pp.  388,  1614;  Blomfield  v. 
Eyre,  8  Beav.  250,  259;  Reynell  v. 
Sprye,  1  De.  G.  M.  &  G.  600,  690; 
Wright  V.  Atkyns,  1  V.  &  B.  313; 
Jackson  v.  Leaf,  IJ.  &  W.  229,  232; 
Clarke  v.  Ormonde,  Jac.  122;  Pax- 
ton  V.  Douglas,  8  Ves.  520;  Good- 
man V.  Kine,  8  Beavan,  379;  Casa- 
major  v.  Strode,  1  Sim.  &  Stu.  381; 
Walton  V.  Johnson,  15  Sim.  352; 
African  Church  v.  Conover,  27  N. 
J.  Eq.  157  (1876);  Rogers  v.  Vos- 
burgh,  4  Johns.  Ch.  (N.  Y.)  84 
(1819);  Thompson  v.  Brown,  4 
Johns.  Ch.  (N.  Y.)  619  (1820); 
Walker  v.  Devereaux,  4  Paige 
(N.  Y.)  248  (1833). 

The  decision  in  Lewiston  Falls 
Mfg.  Co.  V.  Franklin  Co.,  54  Me. 
402  (1867)  and  the  other  cases  sup- 


porting the  general  rule  may  be  fur- 
ther distinguished  perhaps,  on  the 
ground  that  in  the  Maine  case  and 
others,  the  injunction  was  the  sole 
relief  required  while  most  of  the 
decisions  cited  above  in  this  note 
were  cases  where  the  injunction 
was  granted  incidentally  to  other 
relief  sought  and  obtained.  Thus 
in  Blomfield  v.  Eyre,  8  Beavan  250, 
after  granting  the  main  relief 
sought,  the  court  enjoined  defend- 
ant incidentally  from  setting  up 
any  outstanding  estate.  So  in  Pax- 
ton  V.  Douglass,  8  Ves.  520,  and 
Thompson  v.  Brown,  4  Johns.  Ch. 
(N.  Y.)  619  (1820),  the  court  inci- 
dentally to  the  main  relief  upon  a 
creditor's  bill  enjoined  creditor 
from  suing  at  law.  In  other  cases, 
the  occasion  for  the  injunction  first 
arose  or  became  apparent  during 
the  progress  of  the  cause.  Thus  in 
Wright  V.  Atkyns,  1  V.  &  B.  313, 
and  Goodman  v.  Kine,  8  Beavan 
379,  the  defendant  was  enjoined 
from  attempting  to  cut  timber 
after  a  decree  for  an  account  on  a 
bill  for  foreclosure. 

49.  Daniell's  Ch.  Pr.  (6th  Am. 
ed.)  p.  389,  citing  Sharp  v.  Tay- 
lor, 11  Sim.  50,  Barned  v.  Laing, 
13  Sim.   255. 

When  the  occasion  for  the  writ 
does  not  arise  until  after  the  bill 
is  filed,  of  course  the  writ  cannot 
be  prayed  for  in  the  bill. 


222 


EQUITY  PRACTICE 


relief  of  the  same  nature,  or  to  supply  tlie  place  of  a  defec- 
tive special  prayer  by  giving  other  relief  of  a  different 
nature.^*^  This  is  the  chief  use  of  the  general  prayer  in 
modern  practice.  But  the  relief  which  can  be  granted 
under  the  prayer  for  general  relief  in  any  case,  whether 
standing  alone  or  supplementary  to  the  special  prayer,  is 
such  relief  only  as  the  case  stated  in  the  bill  and  sustained 
by  proof  will  justify .-^^  Thus  where  all  the  allegations  in  a 
bill  are  directed  toward  seeking  relief  on  the  ground  of 
a  fraudulent  conveyance  of  real  estate,  and  the  proof  fails 
to  establish  the  fraud  alleged,  the  court  cannot  reach  an 
equitable  interest  growing  out  of  property  conveyed  with- 
out fraud  and  grant  relief  on  that  account  under  the  gen- 
eral prayer.^- 
There  has  been  some  conflict  of  authority  whether  under 


50.  Alabama.     Mobile  Land   Co. 

••v.  Gass,  142  Ala.  520   (1905);  Rice 

■'v.   Eiseman,    122    Ala.    343    (1899). 

,      Florida.     Ins.  Co.  v.  Hilliard,  59 

Fla.  590  (1910);  Lee  v.  Patten,  34 

Pla.  149  (1851). 

Illinois.  Beall  v.  Dingman,  227 
111.  294  (1907);  Penn  v.  Folger,  182 
111.  76  (1899);  Gibbs  v,  Davies,  168 
111.  205  (1897);  Hopkins  v.  Sned- 
aker,  71  111.  449  (1874). 

Maine.  Burleigh  v.  White,  70 
Me.  130  (1879);  McKim  v.  Odom. 
12  Me.  94,  106  (1835). 

Maryland.  Wooten  v.  Burch,  2 
Md.  Ch.  190   (1851). 

New  Jersey.  Junior  Order  v. 
Sharpe,  63  N.  J.  E.  500  (1902); 
Chambers  v.  Kunzman,  59  N.  J.  E. 
433  (1900);  Graham  v.  Berryman, 
19  N.  J.  E.  29  (1868);  Coggswell, 
etc.,  Co.  V.  Coggswell,  40  Atl.  213 
(N.  J.  E.  1898). 

Pennsylvania.  Appeal  of  Darl- 
ington, 86  Pa.  512,  27  Am.  Eep.  726 
(1878). 

Tennessee.  Galloway  v.  Gallo- 
way, 61  Tenn.  328  (1872). 


Vermont.  Eureka,  etc.,  Co.  v. 
Windsor,  etc.,  Co.,  47  Vt.  530 
(1874). 

Virginia.  Paper  v.  Sanders,  21 
Gratt.  (Va.)  60  (1871). 

West  Virginia.  Stewart  v.  Ten- 
nant,  52  W.  Va.  559   (1903). 

United  States.  Jones  v.  Van 
Doren,  130  U.  S.  684,  32  L.  ed.  1077 
(1889);  Haggart  v.  Wilczinski,  143 
Fed.  22,  74  C.  C.  A.  176  (1906); 
Moore  v.  Mitchell,  F.  C.  9770,  2 
Woods  483   (1874). 

51.  See  note  53,  iwst,  p.  223. 

52.  Seudder  v.  Young,  25  Me. 
153   (1845). 

To  express  this  rule  in  another 
way:  the  general  prayer  will  not 
authorize  a  decree  based  upon  facts 
proved  but  not  alleged,  any  more 
than  on  facts  alleged  but  not 
proved.  The  two  must  conform; 
in  short,  relief  can  only  be  granted 
secundum  allegata  et  probata.  Mer- 
rill V.  Washburn,  83  Me.  189 
(1890). 


ORIGINAL  BILLS 


223 


the  general  prayer,  relief  both  different  from  and  incon- 
sistent with  the  special  relief  prayed,  can  be  granted.  But 
on  principle  and  according  to  the  weight  of  opinion  the 
best  rule  isthat  under  the  prayer  for  general  relief,  any 
relief  may  be  granted  consistent  with  the  facts  alleged 
and  proved  in  the  bill,  provided  the  defendant  will  not  be 
surprised  or  prejudiced  thereby,  in  spite  of  the  fact  that 
it  may  be  inconsistent  with  the  special  relief  prayed.^^ 


53.  The  surprise  or  prejudice  is 
the  essential  thing  guarded  against 
by  the  court,  and  if  on  the  whole 
bill  and  under  all  circumstances  of 
the  case  it  appears  that  the  de- 
fendant will  not  be  surprised  by 
granting  the  relief  desired  under 
the  general  prayer,  the  bare  fact 
that  the  new  relief  is  different 
from  or  inconsistent  with  the  spe- 
cial relief  prayed  will  not  of  itself 
prevent  such  relief  being  granted. 
It  may,  however,  constitute  one  of 
the  elements  to  be  considered  in 
determining  the  question  of  sur- 
prise. But  it  does  not  follow  that 
the  new  relief  granted  under  a  gen- 
eral prayer  will  always  take  the 
defendant  by  surprise  simply  be- 
cause inconsistent  with  the  special 
relief  prayed.  Where  a  defendant 
has  to  answer  paragraph  by  para- 
graph distinct  allegations  and 
charges  of  a  bill  it  will  rarely  hap- 
pen that  he  is  misled  in  the  fram- 
ing of  his  answer  by  the  simple 
fact  that  the  plaintiff  has  prayed 
for  the  wrong  relief  thus  made,  es- 
pecially when  his  mistake  is  plain- 
ly manifest. 

The  following  seem  to  be  the 
chief  if  not  the  only  cases  where 
the  inconsistency  of  the  special 
prayer  was  relied  on  as  a  reason 
for  refusing  relief  which  otherwise 
would  have  been  granted  under  the 
general  prayer. 


England.  Walpole  v.  Oxford,  3 
Ves.  416  (1797). 

Alabama.  Florence  Sew.  M.  Co. 
v.  Zeigler,  58  Ala.  221  (1877);  Sim- 
mons V.  Williams,  27  Ala.  507 
(1855). 

Florida.  Pensacola,  etc.,  E.  Co. 
V.  Spratt,  12  Fla.  26  (1868). 

Michigan.  Miller  v.  Casey,  142 
N.  W.  589   (Mich.  1913). 

Mississippi.  Pleasants  v.  Glass- 
cock,  1  S.  &  M.  Ch.   17    (1843). 

New  Jersey.  Eennie  v.  Crombie, 
12  N.  J.  E.  457,  470  (1858). 

New  York.  Colton  v.  Ross,  2 
Paige   (N.  Y.)  395   (1831). 

Pennsylvania.  Appeal  of  Passy- 
unk,  etc.,  Assn.,  83  Pa.  441  (1877); 
Horton's  Appeal,  13  Pa.  67  (1850). 

West  Virginia.     Brown  v.  Wylie, 

2  W.    Va.    502,   98    Am.    Dec.    751 
(1868). 

In  practically  all  of  these  cases, 
if  not  in  all,  the  relief  which  was 
refused  under  the  general  prayer 
was  inconsistent  not  only  with  the 
special  prayer  but  also  with  the 
case  as  made  out  in  the  bill.  This 
was  distinctly  the  situation  in 
many  other  cases  where  relief  was 
refused  under  a  general  prayer. 
The  following  are  examples  of  such 
cases. 

Alabama.  Thomasson  v.  Smith- 
son,  7  Port.  144  (Ala.  1838). 

Maryland.    Dunnock  v.  Dunnock, 

3  Md.  Ch.  140  (1852). 


224 


EQUITY  PRACTICE 


It  has  been  said  in  some  of  the  old  cases  that  the  plaintiff 


North  Carolina.  Kornegay  v. 
Carroway,  2  Dev.  Eq.  403  (N.  C. 
1833). 

Tennessee.  Peck  v.  Peck,  9 
Yerg.  300,  304  (1836). 

Virginia.  James  v.  Bird,  8 
Leigh  510   (1837). 

United  States.  English  v.  Fox- 
all,  2  Pet.  (U.  S.)  602,  612,  7  L.  ed. 
531   (1829). 

Of  the  cases  above  cited  contra 
to  the  rule  in  the  text  the  earliest 
is  that  of  Walpole  a-.  Oxford  in 
1797  but  as  early  as  1783  the  ease 
of  Durant  v.  Durant,  1  Cox's  Eq. 
58  was  decided  holding  that  relief 
might  be  had  directly  inconsistent 
■with  the  specific  relief  prayed. 
Outside  of  this  decision  of  Walpole 
V.  Oxford  the  other  cases  rest 
nearly  of  them  directly  or  indi- 
rectly on  the  authority  of  Cooper  's 
Eq.  PI.  p.  14  and  Daniels  Ch.  Pr., 
(1st  Am.  ed.,  1846,  p.  435  or  6th 
Am.  ed.,  1894,  p.  379),  and  the  au- 
thorities cited  in  their  text.  One 
case  cites  Heard 's  Eq.  PI.  p.  46, 
where  the  only  authorities  given 
are  two  cases  neither  of  which 
support  the  proposition  and  one  of 
which  (Wilkins  v.  Wilkius,  1  Johns. 
Ch.  Ill)  is  frequently  and  prop- 
erly cited  as  an  authority  contra. 
In  Mitf  ord 's  (Lord  Eedesdale's) 
Eq.  PI.  by  Jeremy,  p.  38,  which 
is  one  of  the  earliest  treatises 
on  the  subject  i.nd  the  primary 
source  of  most  of  our  later  texts, 
the  rule  is  laid  down  substantially 
as  given  in  the  text  above,  viz.: 
That  "the  court  will  grant  such 
relief  only  as  the  case  stated  will 
justify  and  will  not  ordinarily  be 
!=o  indulgent  as  to  permit  a  bill 
fram'^d  for  one  purpose  to  answer 
another  especially  if  the  dffendant 


may  be  surprised  or  prejudiced 
thereby."  This  language  is  quoted 
verbatim  in  Cooper's  Eq.  PI.  p.  14, 
and  in  Story 's  Eq.  Pi.  p.  42.  But  in 
Cooper 's  Eq.  PI.  it  is  followed  by 
the  statement  that  in  no  case  will 
relief  be  allowed  under  the  general 
prayer  inconsistent  with  the  spe- 
cial prayer.  The  sole  authority 
given  for  this  statement  is  the  case 
of  Soden  v,  Soden,  cited  by  Lord 
Eldon  in  the  case  of  Hiern  v.  ^Nlill, 
13  Ves.  118,  but  apparently  not 
otherwise  reported.  These  decis- 
ions are  also  the  only  authorities 
given  in  the  original  text  of  Dan- 
iel 's  Ch.  Pr.  in  support  of  the  same 
statement,  but  on  careful  examina- 
tion they  do  not  support  the  prin- 
ciple for  which  they  are  cited, 
rather  the  contrary.  Lord  Eldon 
in  his  opinion  states  the  doctrine 
as  follows:  "The  rule  is,  that  if 
the  bill  contains  charges,  putting 
facts  in  issue  that  are  material,  the 
plaintiff  is  entitled  to  the  relief 
which  those  facts  will  sustain 
under  the  general  prayer;  but  he 
cannot  desert  specific  relief  prayed 
and  under  the  general  prayer  ask 
specific  relief  of  another  description 
unless  the  facts  and  circumstances 
charged  by  the  bill  will  consist- 
ently with  the  rules  of  court, 
maintain  that  relief."  In  other 
words  different  relief  may  be  had 
under  the  general  prayer  when 
it  is  consistent  with  the  case  made 
b}'  the  bill.  This  is  what  the  opin- 
ion stands  for  and  this  is  the  way 
it  was  construed  in  Hall  v. 
Fowlkes,  9  Heisk.  (Tenn.)  755, 
(1872)  but  it  is  sometimes  cited  as 
if  it  were  an  authority  on  the  other 
side.  Having  thus  laid  down  the 
rule  Lord  Eldon  refers  to  the  case 


ORIGINAL  BILLS 


225 


cannot  desert  a  special  prayer  of  the  bill  to  the  decreeing 


of  Soden  v.  Soden,  cited  by  coun- 
sel  and   recently   decided   by   him, 
the  facts   of  which   he   states   and 
says  that   in  that  case  the   decree 
asked  for  could  not  be  maintained 
under    the   prayer   for    general   re- 
lief, "being  inconsistent  both  with 
the  case  made  by  the  bill,  and  with 
the  specific  prayer"  and  then  con- 
cludes immediately:     "But  the  re- 
lief now  asked  is  according  to  the 
case  made  by  the  bill.     There  is  no 
objection   therefore,   to   the   decree 
upon  that  ground."     Thus  accord- 
ing to   the  rule  laid   down   in   the 
beginning      and      this      concluding 
statement  the  sole  essential  requi- 
site, the  only  sine  qua  non  is  that 
the   relief   desired   under   the   gen- 
eral   prayer    should    be    consistent 
with  the  facts  and  charges  in  the 
bill,  yet  in  the   face   of  this   it   is 
attempted   to   interpret    the    state- 
ment that  relief  under  the  general 
prayer  could  not  be  had  in  Soden 
V.  Soden  "since  it  was  inconsistent 
both   with   the   case   made   by  the 
bill  and  with  the  specific  prayer ' ' 
to  mean  that  such  relief  could  not 
be    had    if    inconsistent    with    the 
special  prayer   alone,  although  en- 
tirely   compatible    with    the    case 
made  in  the  bill,  which  is  exactly 
what  his  lordship  shows  before  and 
after  that  he  does  not  mean.     The 
situation   in   Soden   v.   Soden,   was 
simply  a  more  aggravated  case,  the 
inconsistency      with      the      special 
prayer    being    an    added    element 
tending     to     create     surprise     and 
prejudice.      Such    is    the    ultimate 
source   of   the   authority   on  which 
rests  most  of  the  cases  above  cited. 
On  the  other  hand,  it  will  be  seen 
from  an   examination  of  the  num- 
berless  cases    in   which    relief    has 
"Whitehouse  E.  P.  Vol.  I — 15 


been  granted  under  a  general 
prayer,  that  the  courts  disregard 
entirely  the  question  of  whether 
the  special  prayer  is  consistent 
with  the  relief  thus  granted.  See 
cases  in  footnote  fifty-three  above. 
And  in  a  number  of  cases  the 
courts  have  more  or  less  expressly 
repudiated  any  doctrine  that  spe- 
cial prayer  and  relief  given  under 
general  prayer  must  be  consistent. 
See  the  following  cases:  Durant  v. 
Durant,  1  Cox  Eq.  58  (1783);  Hiern 
V.  Mill,  13  Ves.  114  (1806);  McDon- 
nell V.  Finch,  131  Ala.  85  (1901); 
Hopkins  vs.  Snidaker,  71  III. 
449  (1879);  Monmouth,  etc.,  Co.  v. 
Hutchinson,  21  N.  J.  E.  107  (1870); 
Alum  V.  Stockbridge,  8  Baxt. 
(Tenn.)  356  (1878);  Hall  v. 
Fowlkes,  9  Heisk.  (Tenn.)  745 
(1872);  Lee  v.  Cone,  4  Cold. 
(Tenn.)   392    (1867). 

In  other  cases,  while  nominally 
acknowledging  that  the  right  given 
under  the  special  prayer  must  be 
consistent  with  that  specially 
sought,  they  have  found  such  con- 
sistency to  exist,  so  that  the  as- 
sent to  the  doctrine  regarding  in- 
consistency is  but  obiter.  See  for 
instance:  Lee  v.  Patten,  34  Fla, 
149  (1894);  Holden  v.  Holden, 
24  HI.  App.  106,  119  (1887);  Stone 
V.  Anderson,  26  N.  H.  506  (1853); 
Wilkins  v.  Wilkins,  1  Johns.  (N.  Y.) 
Ill  (1814);  Tarbell  v.  Durant, 
61  Vt.  516  (1889);  Vance  Shoe  Co. 
V.  Haught,  41  W.  Va.  275  (1895); 
Fisher  v.  Moog,  39  Fed.  665  (C.  C. 
1889). 

On  the  principles  above  stated 
and  the  authorities  cited  above, 
therefore,  the  rule  given  in  the  text 
would  seem  to  be  correct. 

It  has  been  said  that  the  prayer 


226 


EQUITY  PRACTICE 


of  wliicli  there  is  no  obstruction,  and  seek  other  relief  at 
the  bar  under  the  general  prayer,"'*  and  that  he  cannot 
abandon  his  claim  under  a  special  prayer  against  one 
defendant  and  under  the  general  prayer  insist  on  it 
against  another,^-^  and  that  he  cannot  under  the  general 
jn-ayer  have  a  decree  against  a  party  not  sought  to  be 
charged  by  the  allegations."'*'  But  these  cases  are  all 
examples  of  the  general  principle  that  relief  cannot  be 
given  under  the  general  prayer  which  is  inconsistent  with 
the  allegations  and  purposes  of  the  bill. 

§  120.  Alternative  relief.  It  sometimes  happens  that 
the  plaintiff  is  in  doubt  as  to  the  relief  to  which  he  is 
entitled  on  the  case  made  by  the  bill.  In  such  cases  it  is 
proper  to  frame  tlie  special  prayer  in  the  alternative  so 
that  if  one  of  the  two  kinds  of  relief  sought  is  denied  the 
other  may  be  granted.'*'    Bills  with  a  prayer  of  this  kind 


for  general  relief  must  be  ex- 
pressed disjunctively,  otherwise  it 
stands  or  falls  with  the  special 
praver.  Ex  parte  Brauch,  53  Ala. 
HO  (1875);  Graham  v.  Cook,  48 
Ala.  103  (1872);  Pleasants  v.  Glass- 
cock, 1  S.  &  M.  Ch.  (Miss.)  17 
(1831);  Colton  v.  Boss,  2  Paige 
(X.  Y.)  395  (1831).  But  it  is  said 
in  Burnet  v.  Boyd,  60  (Miss.)  627 
(1882)  that  the  day  for  relying  on 
such  technical  differences  ' '  has  long 
passed ' ' ;  and  the  court  there  gave 
relief  under  the  general  prayer 
which  was  not  of  the  same  nature 
as  that  sought  under  the  special 
prayer,  although  general  prayer  was 
added  conjunctively. 

54.  Pillow  V.  Pillow,  5  Yerg. 
(Tenn.)  420  (1826^.  See  also  Al- 
len V.  Coffman,  1  Bibb  (Ky.)  469 
(1809),  and  Grimes  v.  French,  2 
Atk.   (Eng.)   141. 

The  court  in  Allen  v.  Coffman, 
1  Bibb  (Ky.)  469.  stated  the  rule 
as  given  in  the  text  above  and  then 


said  "there  is  no  precedent  found 
in  the  books  of  such  a  license.  The 
reason  of  the  law  and  of  equity  is 
against  it,  for  the  defendant  may 
be  greatly  surprised  thereby ' '  and 
further  that  "the  utility  of  the 
general  prayer  conjoined  with  the 
particular  prayer  is  that  if  the 
latter  cannot  be  decreed,  then  and 
not  till  then,  a  resort  may  be  had 
to  the  former. ' ' 

55.  Hilleary  v.  Hurdle,  6  Gill 
(Md.)    105   (1S47). 

56.  Thomason  v.  Smithson,  7 
Port.    (Ala.)    144    (1S37). 

57.  Alabama.  Florence  Gas,  etc., 
Co.  V.  Hanby,  101  Ala.  15  (1893); 
Lyons  v.  McCurdy,  90  Ala.  497 
(1890). 

Florida.  Florida  Southern  R.  Co. 
V.  Hill,  40  Fla.  1,  74  A.  S.  E.  124 
(1S9S). 

Illinois.  Shields  v.  Bush,  189  111. 
534,  82  A.  S.  R.  474  (1901);  Gray 
V.  Bloomington,  etc.,  E.  Co.,  120 
111.   159   (1905). 


ORIGINAL  BILLS 


227 


are  called  bills  with  a  double  aspect.^^  But  the  alterna- 
tive praj'er  must  not  be  founded  on  inconsistent  titles  or 
grounds  for  relief. '^'^ 

§  121.  Objections  to  prayers,  how  taken — Amendments. 
Defects  in  prayers  for  relief  may  be  taken  advantage  of 
by  demurrer.  Thus  a  bill  is  demurrable  for  want  of  any 
prayer,  or  in  some  jurisdictions  it  would  seem  for  want 
of  a  special  prayer,^ "^  or  for  want  of  the  proper  special 
prayer  in  the  absence  of  a  general  prayer,  when  the 
special  prayer  incorporated  in  the  bill  is  defective.''^ 
But  a  demurrer  will  not  lie  for  a  defective  or  wrong 


Massachusetts.  Downey        v. 

Lancey,  178  Mass.  465   (1901). 

Michigan.  Eberle  v.  Heaton,  124 
Mich.  205  (1900). 

Mississippi.  Troup  v.  Eice,  55 
Miss.  278  (1877). 

Tennessee.  Tennessee  Ice  Co.  v. 
Eaine,  107  Tenn.  151  (1901). 

Vermont.  Dietrich  v.  Hutchin- 
son, 81  Vt.  160  (1908);  McConneil 
V.  McConneil,  11  Vt.  290  (1839). 

Virginia.  Milton  v.  Kite,  76  S. 
E.  313  (Va.  1912) ;  Baker  v.  Berry 
Hill,  etc.,  Co.,  109  Va.  776  (1909); 
Snyder  v.  Grandstaff,  96  Va.  473 
(1898). 

West  Virginia.  United  States 
Blowpipe  Co.  V.  Spencer,  40  W.  Va. 
698  (1895);  Zell  Guano  Co.  v. 
Heatherly,   38  W.   Va.   409    (1893). 

United  States.  .Jones  v.  Mis- 
souri, etc.,  Co.,  144  Fed.  765,  75 
C.  C.  A.  631  (1906);  Peale  v. 
Marion  Coal  Co.,  122  Fed.  639  (C. 
C.  1909);  Eitchie  v.  Sayers,  100 
Fed.  520  (C.  C.  1900);  McGraw  v. 
Woods,  96  Fed.  56  (C.  C.  1899); 
Hubbard  v.  Urton,  67  Fed.  419  (C. 
C.  1895);  Chaffin  v.  Hall,  39  Fed, 
887  (C.  C.  1889). 

In  Alabama  it  seems  that  prior  to 
the  enactment  of  Sec.  3095,  Code 


of  1907,  the  alternative  prayers 
must  be  based  upon  the  same  con- 
struction of  the  facts  set  forth  in 
the  bill.  Williams  v.  Cooper,  107 
Ala.  246  (1894j;  Tatum  v.  Walker, 
77  Ala.  563  (1884);  Lehman  v. 
Meyer,  67  Ala.  396  (1880).  But 
these  cases,  if  not  overruled  by 
Smith  V.  Smith,  53  Ala.  504  (1907), 
are  overruled  by  the  code  section 
cited. 

58.  See  §  101  "Charges  in  the 
Alternative"  onte,  p.  195,  for  an- 
other form  of  bills  with  a  double 
aspect,  viz.,  bills  averring  alter- 
nate facts  either  of  which  if  true 
would  support  the  single  form  of 
relief  which  the  bill  asks. 

59.  See  §  101  "Charges  in  the 
Alternative,"  ante,  p.  196,  cases 
illustrating  alternative  prayers 
improperly  asking  inconsistent  re- 
lief on  inconsistent  averments. 

60.  Perry  v.  Perry,  65  Me.  399 
(1876).     See  note  46,  ante,  p.  220. 

So  also  for  want  of  a  special 
prayer  for  an  injunction,  where  an 
injunction  is  the  sole  relief  sought. 
Lewiston  Falls  Mfg.  Co.  v.  Frank- 
lin Co.,  54  Me.  402  (1867). 

61.  Loggie  v.  Chandler,  95  Me. 
220,   (1901),  semble. 


228 


EQUITY  PRACTICE 


special  prayer  when  followed  by  a  general  prayer  "^  since 
for  all  that  appears  it  may  be  cured  under  the  latter. 
In  such  cases  also  no  amendment  is  required,  except 
where  a  different  relief  under  the  general  prayer  would 
take  the  defendant  by  surprise.  Where  the  special 
prayer  is  the  only  prayer  of  the  bill  and  the  plaintiff  has 
mistaken  his  relief  thereunder,  he  may  be  allowed  to 
amend  by  substituting  a  prayer  for  other  relief  consist- 
ent with  the  bill."'' 

§  122.  The  prayer  for  process.  This  is  the  last  division 
of  a  bill.  Usually  chancery  rules  require  ^"^  that  the 
prayer  for  process  shall  contain  sufficient  information  for 


62.  Alabama.  Walshe  v.  Dwight, 
etc.,  Co.,  59  So.  630   (Ala.  1912). 

Illinois.  Holdeu  v.  Holden,  24 
111.  App.   106,   119    (1887). 

New  Hampshire.  Carter,  etc., 
Co.  V.  Hauo,  etc.,  Co.,  72  N.  H. 
549   (1903). 

Michigan.  Wals-h.  v.  King,  74 
Mich.  350    (1889). 

New  Jersey.  Cole  v.  Cole,  69  N. 
J.  E.  3   (1905). 

Rhode  Island.  Gorman  v.  Still- 
man,  24  R.  I.  264  (1902). 

Tennessee.  Payne  v.  Berry,  3 
Tenn.  Ch.  154   (1876). 

United  States.  Wilson  v.  Min- 
ing Co.,  174  Fe<l.  317,  98  C.  C.  A. 
189  (1909). 

63.  Story's  Eq.  PI.  (10th  ed.) 
Sec.  40,  citing  Cook  v.  Martin,  2 
Atk.  2;  Beaumont  v.  Boultbee,  5 
Ves.  485.  See  also  Pennock  v. 
Ela,  41  N.  H.  189  (1860);  New 
York  Fire  Ins.  Co.  v.  Tooker,  35 
N.  J.  E.  408  (1882);  Smith  v. 
Onion,  19  Vt.  427  (1847) ;  Perry  v. 
Clark,  77  Va.  397  (1883);  Parrill 
V.  McKinley,  9  Gratt.  (Va.)  1,  58 
Am.  Dec.  212  (1852). 

A  general  prayer  may  be  added 
by  amendment.    McCrum  v.  Lee,  38 


W.  Va.  538  (1893).  In  Sharpe  v. 
Miller,  157  Ala.  299  (1908),  the 
prayer  was  amended  but  there  was 
n  general  prayer  also. 

64.  Alabama,  Eq.  Eule  17;  Flor- 
ida, Eq.  Rule  26;  Maine,  Eq.  Rule 
4;  Maryland  Code,  Sec.  147,  Eq. 
Rule  16;  Rhode  Island,  Eq.  Eule 
7;  Tennessee  Code,  Sec.  6124;  Ver- 
mont, Eq.  Rule  6. 

If  answer  under  oath  is  to  be 
waived,  this  may  be  stated  in  the 
prayer  for  process.  In  some  states, 
however,  answer  is  not  to  be  under 
oath  unless  the  oath  is  requested 
by  the  plaintiff,  and  in  such  case 
he  maj'  repeat  the  request  in  the 
prayer  for  process,  in  addition  to 
including  it  in  the  interrogating 
part.    See  §  83,  note  7,  <tnte,  p.  160. 

If  any  of  the  defendants  is  an 
infant  or  lunatic  under  guardian- 
ship, this  should  be  stated  in  the 
prayer  for  process.  Florida,  Eq. 
Rule  26;  Rhode  Island,  Eq.  Rule 
7;  Vermont,  Eq.  Rule  6. 

In  some  jurisdictions,  however, 
the  prayer  for  process  may  be  en- 
tirely omitted.  Mass.  R.  L.  Ch. 
159,  Sec.  12;  Michigan,  Eq.  Rule  1; 
United  States,  Eq.  Rule  25. 


•ORIGINAL  BILLS  229 

the  proper  framing  of  the  writ  of  subpoena,  which  in  gen- 
eral chancery  practice  is  the  usual  process  prayed  for. 
Care  must  be  taken,  therefore,  to  insert  in  the  prayer  for 
process  the  names  of  all  persons  whom  it  is  intended  to 
make  parties,  for  the  rule  is  that  merely  naming  a  person 
as  a  party  in  a  bill  does  not  make  him  such  unless  process 
is  prayed  against  him;*'^"^  and  conversely,  a  prayer  for 
process  which  omits  the  names  of  defendants  is  defective, 
and  until  amended  is  ground  for  dismissal  of  the  bill,^*^ 
although  the  defect  may  be  waived.^' 

It  is  the  usual  practice  also  where  any  of  the  defendants 
are  out  of  the  jurisdiction,  for  the  plaintiff  to  state  the 
fact  in  his  bill  and  pray  for  process  against  them  when 
they  come  within  the  jurisdiction,  since  otherwise  if  the 
party  should  come  under  the  jurisdiction  in  the  progress 
of  the  suit,  the  plaintiff  would  be  compelled  to  amend  or 
file  a  supplemental  bill.''^ 

The  prayer  should  ask  for  the  particular  kind  of  pro- 
cess desired.    This  is  usually  a  writ  of  subpoena.*^** 

In  cases  where  writs  either  of  injunction  or  ne  exeat 
are  sought,  these  should  be  sought  for  both  in  the  prayer 

65.  See  §  76,  note  14,  ante,  p.  150.  (1872) ;  Armstrong  Cork  Co.  v.  Mer- 

66.  Keen  v.  Jordan,  13  Fla.  327  chants,  etc.,  Co.,  184  Fed.  199  (C. 
(1871);  Howe  v.  Eobins,  36  N.  J.  C.  A.  1910);  Buerck  v.  Imhauser,  8 
E.   19    (1882);   Cook  v.   Dorsey,  38  Fed.  457   (C.  C.  1881). 

W.    Va.    197    (1893) ;    Gobel   v.    A.  An    obviously    clerical    error    in 

St.  Ey.  Supply  Co.,  55  Fed.  825  (C.  stating   the   parties   in   the   prayer 

C.  1893);  City  of  Carlsbad  v.  Tib-  for     relief     will     be     disregarded, 

betts,    51   Fed.    852    (C.    C.    1892);  Highland  v.  Highland,  5  W.  Va.  63 

Contra,    Sheridan    v.    Cameron,    65  (1871). 

Mich.  680   (1887).  68.  Chamberlain    v.    Laneey,    60 

A   fortiori  the   omission   entirely  Me.  230   (1872);  Rhode  Island,  Eq. 

of   the   prayer  for   process,   except  Rule  7;  United  States,  Eq.  Rule  25. 

under  rules  or  statutes  permitting  69.  A  bill  brought  against  a  de- 

the  omission,  is  ground  for  demur-  fendant    in   two    capacities    should 

rer.     Wright  v.  Wright,  8  N.  J.  E.  pray  process  against  him  in  both. 

143  (1849).    Contra,  Jennes  v.  Lan-  Carter    v.    Ingraham,    43    Ala.    78 

des,  84  Fed.  73  (C.  C.  1897).  (1869).       Subpoena     need    not    be 

67.  McMaster  v.  Drew,  77  N.  ,J.  prayed  if  the  prayer  asks  that  one 
E.  270  (1908-10);  Majors  v.  Me-  be  made  a  defendant.  McKenzie 
Neelly,      7      Heisk.      (Tenn.)      294  v.  Baldridge,  49  Ala.  564  (1873). 


230 


EQUITY  PRACTICE 


for  relief,  and  also  in  the  prayer  for  process,''^  unless  the 
occasion  for  seeking  these  remedies  does  not  arise  until 
after  tlie  bill  is  iilcd. 

§  123.  Signature.  Every  bill  of  whatever  description 
should  be  signed  with  the  plaintiff's  name  ^^  either  by  the 
plaintiff  personally  or  by  his  counsel  or  other  authorized 
agent.  The  bill  should  also  be  signed  by  counsel  or  solic- 
itor, whether  the  plaintiff  personally  signs  or  not,  as  a 
guaranty  of  good  faith."-    The  best  practice  is  for  both 


70.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  39,  n.  1,  44,  n.  1,  citing  Had- 
dock V.  Tomlinson,  2  Sim.  &  Stu. 
219;   Sharp  v.  Taylor,  11  Sim.  50; 

Collinson    v.    ,    18    Ves. 

353;  Moore  v.  Hudson,  6  Mad.  218; 
Wood  V.  Beadell,  3  Sim.  273.  See 
also  Willett  v.  Woodhams,  1  111. 
App.  411  (1877);  Lewiston  Falls 
Mfg.  Co.  V.  Franklin  Co.,  54  Me. 
402   (1867). 

But  in  a  few  states  the  rules 
expressly  provide  that  special 
orders  if  duly  asked  for  in  the 
prayers  for  relief  need  not  be  again 
requested  in  the  prayer  for  process. 
Alabama,  Eq.  Rule  17;  Florida,  Eq. 
Eule  26;  Maryland,  Eq.  Eule  16; 
Ehode  Island,  Eq.  Rule  7. 

71.  See  cases  in  succeeding  notes 
to  the  section. 

A  bill  brought  by  ten  persons 
named  as  plaintiffs  but  signed  with 
the  names  of  but  two,  is  the  bill 
of  those  two  only.  Chapman  v. 
Banker  Pub.  Co.,  128  Mass.  478 
(1880).  But  a  bill  brought  by  a 
few  in  behalf  of  all  others  inter- 
ested need  of  course  be  signed  with 
the  names  only  of  the  few  who  ac- 
tually bring   the   bill. 

Where  under  statutory  provisions 
a  bill  is  inserted  in  a  writ,  the  bet- 
ter practice  is  to  have  it  signed 
like  the  ordinary  chancery  bill,  al- 


though in  Baker  v.  Atkins,  62  Me. 
205  (1873),  it  was  apparently  held 
under  the  statute  as  it  then  existed 
that  the  bill  need  not  be  signed, 
although  the  statute  was  not  re- 
ferred to  or  expressly  relied  on. 

A  signature  to  the  affidavit  is  a 
sufficient  signature  to  the  bill.  0.  G. 
Augir  &  Co.  v.  Warder,  81  S.  E.  708 
(W.  Va.  1913). 

72.  Alabama.  Eq.  Rule  14.  The 
footnote  to  the  interrogatories  is 
to  be  signed  in  the  same  manner. 
Ibid. 

Delaware.     Eq.  Rule  20. 

Florida.  Eq.   Rule   27. 

Maine.    Eq.  Eule  4. 

Michigan.  Eveland  v.  Stephen- 
son, 45  Mich.  394,  62-  (1881).  But 
see  Eq.  Rule  1. 

Mississippi.    Code,  Sec.  576. 

New  Jersey.  Wright  v.  Wright, 
8  X.  .1.  E.  143  (1849);  Eq.  Rule  48. 

Rhode  Island.     Eq.  Rule  7. 

Vermont.  Martin  v.  Palmer,  72 
Vt.  409   (1900);  Eq.  Rule  8. 

West  Virginia.  Dever  v.  Willis, 
42  W.  Va.  365  (1896).  But  the 
bill  is  not  demurrable  for  lack  of 
signatures  of  counsel  when  signed 
by  plaintiff.  O.  G.  Augir  &  Co.  v. 
AVarder,  81  S.  E.  708  (W.  Va. 
1913). 


ORIGINAL  BILLS 


231 


plaintiff  and  counsel  or  solicitor  to  sign,  the  jDlaintiff 
immediately  at  the  end  of  the  bill  on  the  right  hand  side 
and  his  counsel  or  solicitor  slightly  lower  down  on  the 
left,  designating  himself  in  equity  as  "solicitor  for  the 
plaintiff. ' '  If,  however,  it  is  not  convenient  to  obtain  the 
plaintiff's  signature,  or  if  for  any  reason  it  be  omitted, 
it  will  be  sufficient  if  his  solicitor  or  other  agent  signs  the 
plaintiff's  name '^  by  himself  as  agent,  the  solicitor  or 
counsel  then  signing  as  such  separately  on  the  left.  A  bill 
is  not  held  to  have  been  signed  by  counsel  where  his  name 
is  signed  by  another  person,  though  with  his  assent,"^  nor 
by  plaintiff'  or  counsel  when  the  signature  is  printed.'-^ 
But  a  signature  in  the  firm  name  by  one  of  two  counsellors 
who  are  in  partnership  is  sufficient.' "^  The  want  of  proper 
signatures  is  ground  for  demurrer  '^"^   and  may  also  be 


United  States.  Roach  v.  Huling, 
F.  C.  11,874,  5  Craneh  C.  C.  637 
(C.  C.  1840) ;  Eq.  Rule  24. 

Signature  of  solicitor  or  counsel 
in  addition  to  signature  by  the 
plaintiff  is  however  unnecessary  in 
the  Massachusetts  practice.  R.  L. 
Ch.  159,  Sec.  14;  Carleton  v.  Ruff, 
149  Mass.  550  (1889);  Chapman 
V.  Banker,  etc..  Pub.  Co.,  128  Mass. 
478   (1880). 

An  indorsement  by  solicitor  or 
counsel  is  sufficient.  Litton  v. 
Armistead,  68  Tenn.  514  (1876); 
Dwight  V.  Humphreys,  F.  C.  4,216, 
3  McL.  154  (C.  C.  1842). 

Where  the  distinction  is  re- 
tained between  solicitor  and  coun- 
sel, a  signature  by  solicitor  and 
not  by  counsel  is  insufficient. 
Davis  V.  Davis,  19  N.  J.  E.  180 
(1868).  But  this  distinction  is  un- 
known in  most  jurisdictions. 
Henry  v.  Gregory,  29  Mich.  68 
(1874);  Stimson  v.  Hildrup,  F.  C. 
13,459,  8  Biss.  376  (C.  C.  1878). 

The    omission    of   counsel   or    so- 


licitor to  sign  may  be  waived  by 
failure  to  take  the  objection.  It  is 
not  ground  for  reversal  on  review. 
Winkleman  v.  White,  147  Ala.  481 
(1906);  Turner  v.  Jenkins,  79  HI. 
228  (1875);  Bernier  v.  Bernier,  72 
Mich.  43   (1888). 

In  New  Jersey,  together  with 
their  signatures  the  plaintiff  should 
state  his  residence  and  his  solicitor, 
his  office  address  in  the  state.  Eq. 
Rule  50. 

73.  Burns  v.  Lynde,  6  All. 
(Mass.)  305  (1863);  Stradler  v. 
Hertz,  13  Lea  (Tenn.)  315  (1884); 
Swan  V.  Newman,  3  Head  (Tenn.) 
289  (1859);  Big.  Assn.  v.  Buser,  61 
W.  Va.  590   (1907). 

74.  Davis  v.  Davis,  19  N.  J.  Eq., 
180   (1849). 

75.  Eveland  v.  Stephenson,  45 
Mich.  394   (1881). 

76.  Hampton  v.  Coddington,  28 
N.   J.   Eq.   557    (1877). 

77.  Wright  v.  Wright,  8  N.  J.  E. 
143  (1849);  Dwight  v.  Humphreys, 
F.  C.  4216,  3  McL.  154  (C.  C.  1842). 


232 


EQUITY  PRACTICE 


taken  advantage  of  by  motion  to  strike  the  bill  from  the 
files.^*  The  omission  cannot  be  remedied  after  filing  of 
the  bill  except  by  order  of  the  court,'*'  but  leave  to  amend 
will  be  granted  even  after  motion  to  strike  the  bill  from 
the  files  for  such  defect.^" 

§  124.  Verification.  In  certain  cases  a  bill  must  be  veri- 
fied by  an  oath,  or  an  affidavit  must  be  annexed  to  the  bill 
or  filed  with  it.  Thus  it  is  generally  true  that  bills  for 
discovery  and  those  praying  for  injunction  must  be  veri- 
fied by  oath.*^^     The  bill  of  discovery  referred  to  here, 


78.  Bernier  v.  Bernier,  72  Mich. 
43  (1888);  Eveland  v.  Stephenson, 
45  Mich.  394  (1881);  Gove  v.  Pet- 
tis, 4  Sandf.  Ch.  (N.  Y.)  403 
(1846);  Roach  v.  Huling,  F.  C.  11, 
874,  5  Craneh  C.  C.  637  (C.  C. 
1840). 

The  court  of  its  own  motion  may 
order  an  unsigned  bill  removed 
from  the  files.  French  v.  Dear,  5 
Ves.  Jr.  547. 

79.  Partridge  v.  Jackson,  2  Edw. 
Ch.    (N.  Y.)    520    (1836). 

80.  Corey  v.  Hatch,  2  Edw.  Ch. 
(N.  Y.)  191  (1836);  De%'er  v. 
Willis,  42  W.  Va.  365  (1896). 

Leave  to  reinstate  a  bill  which 
has  been  removed  from  the  files  on 
motion  will  be  readily  granted. 
Roach  V.  Huling,  F.  C.  11,874,  5 
Craneh  C.  C.  637   (C.  C.  1840). 

81.  Alabama.  Bills  of  discovery. 
Lawson  v.  Warren,  89  Ala.  584 
(1888).  Bills  seeking  temporary 
injunctions.  Eq.  Rule  15.  Bills 
for  appointment  of  receivers.  Bur- 
gess V.  Martin,  111  Ala.  656  (1889). 
Bills  asking  writs  of  seizure.  Code, 
See.  3194  et  seq. 

Delaware.  Bills  seeking  an  in- 
junction.   Eq.  Rule  20. 

Florida.  Godwin  v.  Phifer,  51 
Fla.  441   (1906). 

Illinois.     Fort  Dearborn,  etc.,  Co. 


V.  Rigdon,  166  111.  App.  334  (1913). 

Maine.  Bills  seeking  discovery 
or  injunction.     Eq.  Rule  5. 

Maryland.  Fowble  v.  Kemp, 
92  Md.  630   (1901). 

Massachusetts.  Bills  seeking  in- 
junction, unless  facts  otherwise 
verified.    Eq.  Rule  2. 

Michigan.  Manistique  Lumber 
Co.  V.  Lovejoy,  55  Mich.  189 
(1884). 

Pennsylvania.  Gilroy's  App.  100 
Pa.  5  (1882). 

Rhode  Island.  Bills  seeking  tem- 
porary injunction.  G.  L.  Ch.  289, 
Sec.  4. 

Tennessee.  "Whenever  a  bill 
seeks  some  immediate  order  or  inter- 
position of  the  court. ' '  Gibson  's 
(Tenn.)  Suits  in  Chancery  (2nd 
ed.)  Sec.  161. 

Vermont.  Bills  seeking  injunc- 
tion or  receiver.     Eq.  Rule  7. 

West  Virginia.  Bills  seeking 
sworn  answer.  Code  1913,  Sec. 
4792. 

United  States.  Black  v.  Henry 
G.  Allen  Co.,  42  Fed.  618,  9  L.  R. 
A.  433   (1880). 

But  affidavits  filed  with  the  bill 
may  frequently  supply  the  place 
of  an  affidavit  to  the  bill.  See 
Massachusetts,  Eq.  Rule  2;  Penn- 
sylvania, Eq.  Rule  81;  Mississippi 
Code,  Sec.  557. 


ORIGINAL  BILLS 


233 


however,  is  tlie  technical  bill  for  discovery  alone,  and  a 
bill  to  redeem  a  mortgage  which  seeks  for  answers  to 
allegations  in  reference  to  rents  and  disbursements  is 
not  a  bill  for  discovery  and  need  not  be  verified  by  oath.^- 
Where  a  writ  of  ne  exeat  is  asked  for,  an  affidavit  as  to 
the  facts  making  it  necessary  is  also  required.^ ^  So  when 
a  bill  is  filed  to  obtain  the  benefit  of  an  instrument  upon 
which  an  action  at  law  would  lie,  upon  the  ground  that 
it  is  lost  and  that  the  plaintiff  in  equity  cannot  therefore 
have  any  relief  at  law,  the  court  may  require  the  bill  to 
be  accompanied  by  an  affidavit  as  to  the  loss  of  the  in- 
strument.^^ Bills  of  interpleader  must  be  accompanied 
by  an  affidavit  by  the  plaintiff  that  there  is  no  collusion 
between  him  and  any  of  the  parties. ^^  In  other  cases  no 
verification  is  required.^^  In  any  case  of  doubt,  however, 
it  is  always  advisable  to  annex  a  verification  to  the  bill. 


But  such  affidavits  cannot  en- 
large the  scope  of  the  bill.  Deo  v. 
Union  Pac.  E.  Co.,  17  Fed.  273 
(C.  C.   1883). 

If  the  plaintiff  lacks  knowledge 
of  the  facts,  they  should  be  veri- 
fied by  some  person  who  has  knowl- 
edge.    New  Jersey,  Eq.  Rule  119. 

82.  Dinsmore  v.  Grossman,  53  Me. 
441  (1866);  Hilton  v.  Lathrop,  46 
Me.  297  (1858).  And  so  in  gen- 
eral where  discovery  is  but  a  nec- 
essary incident  of  a  bill  for  other 
equitable  relief.  Hall  v.  McKeller, 
155  Ala.  508  (1908);  Burke  v.  Mor- 
ris, 421  Ala.   126   (1898). 

83.  Rice  v.  Hale,  5  Cush.  (Mass.) 
238  (1849);  Porter  v.  Spencer,  2 
Johns.  Ch.   (N.  Y.)   169,   (1816). 

84.  Daniel's  Ch.  Pr.  (6th  Am. 
ed.),  p.  392,  citing  inter  alia  Wal- 
mesley  v.  Child,  1  Ves.  Sr.  348; 
Wright  V.  Lord  Maidstone,  1  K.  & 
J.  701,  Whitchurch  v.  Golding,  2  P. 
Wms.  541;  March  v.  Davison 
(1842)  9  Paige  (N.  Y.)  580. 


85.  See  Sec.  126,  note  5,  post, 
p.  240. 

86.  Alabama.  Montgomery  Iron 
Works  V.  Capital  City  Ins.  Co.,  137 
Ala.  134  (1903);  Lamar  v.  Rankin 
Drug  Co.,  155  Ala.  474  (1908). 

Illinois.  Labadie  v.  Hewitt,  85 
111.  341    (1877). 

Maine.  Frost  v.  Frost,  63  Me. 
399  (1874);  Baker  v.  Atkins,  62 
Me.  205   (1873). 

Massachusetts.  Burns  v.  Lynde, 
6  Allen  (Mass.)  305   (1863). 

Michigan.  Shaw  v.  Tabor,  146 
Mich.  544  (1906);  Moore  v.  Cheese- 
man,  23  Mich.  332   (1871). 

Mississippi.  Waller  v.  Shannon, 
53  Miss.  500   (1876). 

Tennessee.  McCamy  v.  Key,  3 
Lea   (Tenn.)   247   (1879). 

United  States.  National  Hay- 
rake,  etc.,  Co.  V.  Harbert,  F.  C. 
10,044,   (C.  C.  1875). 

In  Michigan,  verification  is  not 
needed  in  a  bill  for  an  injunction 
as  final  relief,  under  the  provision 


234 


EQUITY  PRACTICE 


In  those  cases  where  the  affidavit  is  required,  if  there 
are  several  plaintiffs  all  must  join  in  the  affidavit  unless 
there  is  some  good  reason  for  it.^'  If  a  corporation  is 
plaintiff,  the  oath  may  be  made  by  any  authorized  offi- 
cer who  has  knowledge  of  the  facts.'^^  The  bill  may  also 
be  verified  by  oath  of  agent  or  attorney  where  it  can  be 
done  as  of  his  own  knowledge.^^  Generally  all  oaths 
must  be  upon  the  affiant's  own  knowledge,  infonnation 
and  belief,  and  so  far  as  upon  information  and  belief, 
that  he  believes  his  information  to  be  true.^'^ 


requiring  verification  to  bills  seek- 
ing temporary  or  immediate  injunc- 
tions. Robinson  v.  Baugh,  31 
Mich.  290  (1875);  Moore  v.  Cheese- 
man,  23  Mich.  332  (1871). 

87.  Daniell's  Ch.  Pr.,  (6th  Am. 
ed.)  p.  396. 

Verification  by  one  of  several 
plaintiffs  was  held  sufficient  in  Ew- 
ing  V.  Lamphere,  147  Mich.  659 
(1907). 

88.  Daniell's  Ch.  Pr.  (6th  Am. 
ed.)  p.  396;  First  Baptist  Soc.  v. 
Dexter,  193  Mass.  187,  342  (1906); 
Youngblood  v.  Shamp,  15  N.  J.  E. 
42  (1863);  Orleans  v.  Skinner,  9 
Paige  (N.  Y.)  305  (1841). 

The  bill  in  such  case  is  signed  in 
the  corporate  name  by  the  officer 
making  the  oath,  and  the  oath 
should  state  that  such  officer  is 
duly  authorized  to  sign  the  cor^io- 
rate  name  and  make  oath  to  the 
bill  on  behalf  of  the  corporation, 
that  he  has  read  the  bill  or  heard 
it  read  and  knows  the  contents 
thereof,  and  that  the  same  is  true 
of  his  own  knowledge  except  as 
to  those  matters  alleged  on  infor- 
mation and  belief  and  as  to  those 
he  believes  them  to  be  true. 

89.  Alabama.     Eq.  Rule  15. 
norida.      Seaboard,   etc.,   R.   Co. 


V.  Southern,  etc.,  Co.,  53  Fla.  832 
(1907). 

Michigan.     Eq.  Rule  2. 

Mississippi.  Matthews  v.  Son- 
theimer,  39  Miss.  174  (1860). 

West  Virginia.  Code  1913,  Sec. 
4796. 

The  Alabama  rule  above  cited 
allows  verification  by  agent  or  at- 
torney when  the  affidavit  sets  forth 
the  reason  why  verification  is  not 
made  by  the  plaintiff.  Under  this 
rule,  absence  from  the  state  is  a 
sufficient  reason.  Kinney  v.  J.  S. 
Reeves  &  Co.,  142  Ala.  604  (1909). 
But  the  attorney's  verification  was 
held  insufficient  in  Pollard  v.  South- 
ern Fertilizer  Co.,  122  Ala.  409 
(1908). 

By  West  Virginia  Code  1913,  See. 
4796,  a  bill  to  be  sworn  to  by  a 
person  other  than  the  plaintiff  must 
show  which  allegations  are  made 
on  information  and  belief. 

90,  In  Illinois,  it  has  been  held 
that  an  affidavit  of  the  truth  of 
allegations  "made"  on  informa- 
tion and  belief  is  insufficient.  Chi- 
cago Exhibition  Co.  v.  111.  State 
Board,  77  111.  App.  339  (1898). 
But  an  affidavit  of  the  truth  of  al- 
legations "stated"  to  be  on  in- 
formation  and   belief   is   sufficient. 


ORIGINAL  BILLS 


235 


§  125.  Bills  of  interpleader.  Having  tlius  considered 
the  common  bill  in  equity  at  some  length  it  remains  for 
us  to  discuss  briefly  the  only  other  kind  of  original  bill  in 
use  in  modern  practice,  viz.:  the  bill  of  interpleader.  A 
bill  of  interpleader  is  usually  brought  where  two  or  more 
persons  claim  the  same  obligation  or  j^roperty  by  different 
or  separate  titles  or  interests  from  a  plaintiff  who  does 
not  claim  any  right  in  it  in  himself,  and  who  does  not 
know  to  which  claimant  it  belongs,  and  who,  therefore, 
to  avoid  trouble  or  expense  which  has  arisen  or  may  arise 
from  their  attempts  to  enforce  their  conflicting  claims 
against  him,  asks  that  they  may  be  compelled  to  inter- 
plead and  state  their  several  claims,  so  that  the  court  may 
decide  to  whom  the  obligation  is  due  or  the  property 
belongs. ^^    A  typical  bill  of  interpleader  is  one  brought  by 


Parish  v.  Vance,  110  111.  App.  50 
(1903).  The        affiant        should 

"charge"  the  statements  to  be 
true,  where  they  lie  only  within 
defendant's  knowledge.  Campbell 
V.  R.  Co.,  71  111.  611   (1874). 

In  Alabama,  an  affidavit  by  a 
solicitor  of  truth  "according  to 
affiant's  best  belief  and  recollec- 
tion" is  insufficient.  McKissack  v. 
Voorhees,  119  Ala.  101  (1898).  An 
affidavit  that  matters  alleged  as 
facts  are  true,  those  alleged  on  in- 
formation and  belief  are  believed 
to  be  true,  is  insufficient,  where 
all  the  facts  are  alleged  on  infor- 
mation and  belief.  Schilcer  v. 
Brock,  124  Ala.  626  (1900).  A 
verification  of  a  bill  as  "true  to 
the  best  of  his  knowledge,  infor- 
mation and  belief"  is  insufficient. 
Burgess  v.  Martin,  111  Ala.  656 
(1895). 

In  Maryland,  an  affidavit  of 
truth  "according  to  the  best  of 
his  knowledge  and  belief"  is  suf- 
ficient.   Friebert  v.  Burgess,  11  Md. 


452  (1857).  But  an  affidavit  by 
attorney  or  agent  is  insufficient  if 
it  does  not  show  that  he  had  per- 
sonal knowledge  of  the  facts  set 
out  in  the  bill.  Fowble  v.  Kemp, 
92  Md.  630  (1901). 

When  facts  are  stated  on  infor- 
mation, it  is  advisable  to  annex  the 
affidavit  of  the  person  furnishing 
the  same.  Godwin  v.  Plufer,  51 
Fla.  441  (1906). 

See  also  cases  on  verifications  of 
answers,  Sec.  269,  Chapter  XIII, 
post,  and  forms  of  verifications  in 
volume  III  of  this  work. 

91.  Alabama.  Johnson  v.  Maxey, 
43  Ala.  521  (1869);  Gibson  v. 
Goldthwaite,  7  Ala.  281,  42  Am. 
Dec.  592  (1845). 

Delaware.  Hastings  v.  Cropper, 
3  Del.  Ch.  165   (1867). 

Illinois.  Snow  v.  Ulrich,  126  111. 
App.  493  (1905);  Byers  v.  San- 
some-Thayer  Co.,  Ill  111.  App.  575 
(1904);  Brocklebank  v.  Lasher,  109 
111.  App.  627  (1903. 


236 


EQUITY  PRACTICE 


a  bank  against  two  claimants  to  a  fund  deposited  in  the 
bank  to  determine  to  which  claimant  it  shonld  be  paid.^- 
§  126.  — Frame.  In  the  first  place  the  bill  shonld  clearly 
state  the  position  of  the  plaintiff  and  show  his  right  to 
maintain  the  bill.  Thus  it  should  appear  that  the  plain- 
tiff claims  no  interest  himself  in  the  subject  matter,  for 
the  foundation  of  the  bill  rests  on  the  very  fact  that  he  is 
a  mere  holder  of  the  stake  without  any  personal  interest 
therein  as  against  either  contesting  claimant,  or  any  inde- 
pendent personal  liability  to  either  of  them.*^^    It  must 


Maryland.  National  Park  Bank 
V.   Lanahan,  60  Md.  477    (1883). 

Mississippi.  Yarborough  v. 
Thompson,  11  Miss.  291,  41  Am. 
Dec.   626    (1844). 

New  Hampshire.  Parley  v. 
Blood,  30  N.  H.  354   (1854). 

New  Jersey.  Metropolitan,  etc., 
Co.  V.  Hamilton,  70  Atl.  677  (N.  J. 
E.  1908) ;  Mount  Holly,  etc.,  Co.  v. 
Ferree,  17  N.  .J.  E.  117  (1864). 

Rhode  Island.  Green  v.  Mum- 
ford,  4  E.  I.  313   (1856). 

Virginia.  Eunkle  v.  Eunkle,  112 
Va.  788   (1911). 

West  Virginia.  Oil  Eun  Petrol- 
eum Co.  V.  Gale,  6  W.  Va.  525 
(1873). 

United  States.  Smith  v.  Mosier, 
169  Fed.  430  (C.  C.  1909);  McWhir- 
ter  V.  Halstead,  24  Fed.  828  (C. 
C.  1885);  Louisiana,  etc.,  Co.  v. 
Clark,  16  Fed.  20  (C.  C.  1883). 

In  Hoggart  v.  Cutts,  Cr.  &  Phill, 
204,  Lord  Cottenham  defined  inter- 
pleader as  follows:  "It  is  where 
the  plaintiff  says,  I  have  a  fund 
in  my  possession  in  which  I  claim 
no  personal  interest  and  to  which 
you  the  defendants  set  up  conflict- 
ing claims;  pay  me  my  costs  and  I 
will  bring  the  fund  into  court  and 
you  shall  contest  it  between  our- 
selves. ' ' 


Bills  of  interpleader  according 
to  the  general  principles  of  chan- 
cery practice  may  be  brought  even 
where  a  statutory  interpleader 
exists.  Crass  v.  Memphis  Co.,  96 
Ala.  447  (1891);  Livingstone  v. 
Bank,  50  111.  App.  562  (1893); 
Eunkle  v.  Eunkle,  112  Va.  788 
(1911).  Any  doubts  as  to  the  right 
of  the  plaintiff  to  maintain  inter- 
pleader should  be  resolved  in  his 
favor.  Supreme  Comniandery  U.  O. 
G.  C.  V.  Merrick,  163  Mass.  374 
(1895). 

92.  Fidelity  Co.  v.  Illinois  Co., 
110  111.  App.  92  (1903);  Gardiner 
Sav.  Inst.  V.  Emerson,  91  Me.  535 
(1898);  Wayne  Bank  v.  Airey,  95 
Mich.  520  (1893);  Peoples  Sav. 
Bank  v.  Look,  95  Mich.  7  (1893); 
Diekeschied  v.  Wheeling  Nat. 
Bank  28,  West  Va.,  340  (1886), 
statutory  interpleader;  Foss  v. 
First  Nat.  Bank,  3  Fed.  185  (C. 
C.   1880). 

93.  Alabama.  Stewart  v.  Sam- 
ple, 168  Ala.  270  (1910);  Conley 
V.  Alabama  Gold,  etc.,  Co.,  67  Ala. 
472  (1880). 

Illinois.  Long  v.  Baker,  85  IlL 
431  (1877);  Snow  v.  Ulrich,  126  111. 
App.  493  (1905). 

Maine.  Castner  v.  Twitehell- 
Champlin   Co.,   91   Me.   524    (1898). 


ORIGINAL  BILLS 


237 


appear  that  the  plaintiff  actually  has  title  or  possession 
of  the  property  in  controversy;  ^'*  and  it  must  also  appear 
that  the  capacity  in  which  the  plaintiff  holds  the  property 
is  such  as  to  entitle  him  to  call  upon  the  parties  to  inter- 
plead. For  example  if  the  bill  should  show  that  the  plain- 
tiff' was  merely  the  agent  of  one  of  the  parties  and  the 
other  party  was  adverse  to  the  bailor,  the  bill  cannot  be 
maintained  since  if  he  received  the  property  by  the 
authority  of  his  principal,  his  possession  is  that  of  his 
principal  and  it  is  his  duty  to  return  it  to  his  principal.^^ 


Maryland.      Home    Ins.    Co.    v. 

Caulk,  86  Md.  385  (1897);  Nat. 
Bank  v.  Lauahan,  60  Md.  477 
(1883). 

Massachusetts.  Welch  v.  Boston, 
208  Mass.  326  (1911);  National  L. 
Ins.  Co.  V.  Pingrey,  141  Mass.  411 
(1886). 

Michigan.  Trust  Co.  v.  Hun- 
rath,  168  Mich.  180  (1911). 

Mississippi.  Blue  v.  Watson,  59 
Miss.  619   (1882). 

New  Jersey.  Pratt  v.  Worrell, 
66  N.  J.  E.  194  (1904). 

Pennsylvania.  Appeal  of  Brides- 
burg  Mfg.  Co.,  106  Pa.  275  (1884). 

Rhode  Island.  Conn.,  etc.,  Ins. 
Co.  V.  Tucker,  29  E.  I.  1,  91  A. 
S.  E.  590   (1901). 

Tennessee.  Hely  v.  Lee,  108 
Tenn.  715   (1902). 

Vermont.  Wing  v.  Spaulding,  64 
Vt.  83   (1891). 

Virginia.  Eunkle  v.  Runkle,  112 
Va.  788  (1911). 

United  States.  Smith  v.  Mosier, 
169  Fed.  430  (G.  C.  1909). 

In  nearly  all  of  the  above  cases 
demurrer  was  sustained  for  the 
reason  stated  in  the  text. 

Under  the  chancery  rules  of  Mas- 
sachusetts, the  interest  of  a  plain- 
tiff in  interpleader  must  be  so  far 
kept   distinct  that  the  same   coun- 


sel must  not  act  for  the  plaintiff 
and  a  defendant.  Provident  Instn. 
V.  White,  115  Mass.  112  (1874); 
Gordon  v.  Green,  113  Mass.  259 
(1873);  Houghton  v.  Kendall,  7 
Allen  (Mass.)  72  (1863).  And  in 
general  the  appearance  of  the  same 
l^erson  as  counsel  for  plaintiff  and 
a  defendant  points  to  collusion. 
Michigan,  etc.,  Plaster  Co.  v.  White, 
44  Mich.  25  (1880). 

A  plaintiff's  claim  to  a  deduction 
is  admitted  by  demurrer  to  the  bill. 
Provident  Life  Soc.  v.  Loeb,  115 
Fed.  357  (C.  C.  1901). 

94.  Crass  v.  Memphis  Co.,  96  Ala. 
447  (1890);  Grant  Bros.  Auto  Co. 
v.  Cotter,  161  Mich.  521  (1910); 
Mount  Holly  Turnpike  Co.  v.  Fer- 
ree,  17  N.  J.  E.  117  (1864);  Kil- 
lian  v.  Ebbinghaus,  110  U.  S.  568, 
28  L.  ed.  246  (1884). 

95.  Whitbeck  v.  Whiting,  29  111. 
App.  520  (1895);  Grant  Bros.  Auto 
Co.  V.  Cotter,  161  Mich.  521  (1910); 
New  Jersey,  etc..  Trust  Co.  v.  Eec- 
tor,  75  N.  J.  E.  423  (1909). 

A  treasurer  of  a  corporation  can- 
not bring  interpleader  in  respect 
to  a  fund  held  by  him  as  treasurer. 
Hechmer  v.  Gilligan,  28  W.  Va.  750 
(1886).  But  an  agent  may  some- 
times bring  interpleader  in  behalf 
of  his  principal.     Gibson  v.   Gold- 


238 


EQUITY  PRACTICE 


Secondly,  the  bill  should  show  that  there  are  conflicting 
claimants  capable  of  interpleading,^*'  and  should  state 
the  nature  of  the  several  claims  of  the  defendants  whom  it 
seeks  to  compel  to  interplead/''  Otherwise  both  defen- 
dants may  take  the  objection  by  demurrer,  one  because 
the  bill  shows  no  claim  of  right  in  him,  the  other  because 
the  bill  showing  no  riglit  in  the  codefendant  shows  no 
cause  of  interpleader.    The  claims  should  be  so  stated  also 


thwaite,  7  Ala.  281,  42  Am.  Dee. 
592  (1845);  Lammis  v.  L'Engle,  19 
Fla.  806  (1883). 

If  it  appears  in  the  bill  that  the 
rights  of  either  party  against  the 
plaintiff  have  been  adjudicated  at 
law,  demurrer  will  be  sustained  on 
the  ground  that  the  plaintiff's  duty 
is  clear.  Holmes  v.  Clark,  46  Vt. 
22    (1873). 

96.  Browning  v.  Watson,  18  Miss. 
482   (1842). 

If  it  appears  that  there  is  no 
real  controversy  between  the  de- 
fendants, or  that  one  of  the  defend- 
ants has  no  real  claim  whatever, 
the  bill,  if  brought  as  a  simple  bill 
of  interpleader  should  be  dismissed. 
Crass  V.  Memphis,  etc.,  R.  Co.,  96 
Ala.  447  (1892);  Centralia  v.  D.  W. 
Norton  &  Co.,  140  111.  App.  46 
(1908);  Wallace  v.  Sorter,  52  Mich. 
159  (1883);  Blue  v.  Watson,  59 
Miss.  619  (1882);  Koppinger  v. 
O'Donnell,  16  E.  I.  417  (1889);  and 
so  held  of  bill  in  nature  of  inter- 
pleader in  Pusey,  etc.,  Co.  v.  Mil- 
ler, 61  Fed.  401   (C.  C.  1894). 

97.  Alabama.  Conley  v.  Ala- 
bama Gold,  etc.,  Co.,  67  Ala.  472 
(1880). 

Michigan.  Grant  Bros.  Auto  Co. 
v.  Cotter,  161  Mich.  521  (1910); 
Wallace  v.  Sortor,  52  Mich.  159 
(1883). 

Mississippi.  Snodgrass  v.  But- 
ler, 54  Miss.  45   (1876). 


New  Jersey.  Ter  Knile  v.  Red- 
dick,  39  Atl.  1,062  (N.  J.  E.  1898); 
Varrian  v.  Berrien,  42  N.  J.  E.  1 
(1886);  Fitch  v.  Brower,  42  N.  J. 
E.    300    (1886). 

Tennessee.  State  Ins.  Co.  v.  Gen- 
uett,  2  Tenn.  Ch.  82  (1874);  Mc- 
Ewen  v.  Troost,  33  Tenn.  186 
(1853). 

But  the  plaintiff  need  not  go  into 
the  details  of  the  case  of  either 
defendant,  where  he  states  enough 
to  show  the  existence  of  a  real  con- 
troversy. Byers  v.  Sansome-Thayer 
Commn.  Co.,  Ill  111.  App.  575 
(1904);  Supreme  Lodge  v.  Ead- 
datz,  57  111.  App.  119  (1894);  Met- 
ropolitan Life  Ins  Co.  v.  Hamilton, 
70  Atl.  677  (N.  J.  E.  1908)  ;  Briant 
V.  Reed,  14  N.  J.  E.  271  (1862); 
Lozier  v.  Van  Saun,  3  N.  J.  E. 
325,  329  (1835). 

The  plaintiff  need  not  show  that 
he  has  been  actually  sued.  New- 
hall  V.  Kastens,  70  111.  156  (1873). 
He  will  not  be  dismissed  from  court 
merely  because  he  shows  that  one 
party  defendant  probably  has  a 
better  right  than  the  other.  Penna. 
R.  Co.  V.  Stevenson,  63  N.  J.  E. 
634  (1902).  But  a  bill  is  demur- 
rable which  shows  that  one  defend- 
ant has  no  claim  whatever  to  the 
property  in  controversy.  See  note 
96,  ante. 


ORIGINAL  BILLS 


m 


as  to  show  tiiat  tliey  are  of  the  same  nature  and  character. 
Bills  of  interpleader  ordinarily  do  not  lie  where  there  is  no 
privity  between  the  parties.  Thus,  a  tenant,  liable  to  pay 
rent  may  file  a  bill  of  interpleader,  where  there  are  sev- 
eral persons  claiming  title  to  it  in  priority  of  contract  or 
of  tenure,  to  compel  them  to  ascertain  to  whom  it  is  prop- 
erly payable. ^^  But  if  a  stranger  should  set  up  a  claim 
to  the  rent  by  virtue  of  a  paramount  title  and  not  in  pri- 
ority, or  if  he  should  set  up  a  claim  of  a  different  nature, 
such  as  a  claim  to  the  mesne  profits  by  reason  of  his  title 
paramount,  a  bill  of  interpleader  would  not  lie  in  behalf 
of  the  tenant,  for  the  debt  is  not  of  the  same  nature  or 
character.^ ^  It  must  also  appear  that  the  defendants  each 
claim  the  same  debt,  fund  or  other  property.^ 

Thirdly,  the  bill  must  contain  an  offer  to  bring  the  fund 
in  question  into  court,  otherwise  a  demurrer  will  lie.^    The 

98.  Story's    Eq.    PI.    (10th    ed.),  Rhode  Island.     Connecticut,  etc., 

Sec.  294,  citing  Badeau  v.  Tylee,  1       Ins.   Co.  v.  Tucker,  23  E.  I.  1,  91 


Sandf.  Ch.  270;  Lowndes  v.  Corn- 
ford,  18  Ves.  299;  Langston  v. 
Boylston,  2  Ves.  Jr.  101;  Dungey  v. 
Angove,  2  Ves.  Jr.  304,  310,  312; 
Jew  V.  Wood,  3  Beav.  579,  1  Cr.  & 
Phill.  185;  Crawshay  v.  Thornton, 
7  Sim.  391,  2  Myl.  &  Cr.  1;  Ber- 
mingham  v.  Tuite,  L.  E.  7  Eq.  221. 

99.  Story's  Eq.  PI.  (10th  e<l.), 
Sec.  294,  citing  Dungey  v.  Angove, 
2  Ves.  Jr.  304,  310;  Johnson  v.  At- 
kinson, 3  Anst.  798;  Langston  v. 
Boylston,  2  Ves.  Jr.  101,  \10S; 
Clarke  v.  Byne,   13  Ves.   383,  :'.86; 

Lowe    V.   ,    3    Mad.    277.      See 

also  Snodgrass  v.  Butler,  54  Miss. 
45  (1876);  Dodd  v.  Bellows,  29  N. 
J.  E.   127   (1878). 

1.  Illinois.  Snow  v.  Ulrich,  126 
111.  App.  493  (1905);  Brocklebank 
V.  Lasher,  109  111.  App.  627  (1903). 

Maryland.  Home  Ins.  Co.  v. 
Caulk,  86  Md.  385  (1897). 

Michigan.  School  District  v. 
Weston,  31  Mich.  85  (1875). 


A.  S.  E.  590  (1901). 

Vermont.  Lincoln  v.  Eutland, 
etc.,  E.  Co.,  24  Vt.  639  (1852). 

Virginia.  Eunkle  v.  Eunkle,  112 
Va.  788   (1911). 

West  Virginia.  Oil  Eun,  etc.,  Co. 
V.  Gale,  6  W.  Va.  525  (1873). 

United  States.  Wells,  Fargo  & 
Co.  V.  Miner,  25  Fed.  533  (C.  C. 
1S85),  under  California  Code. 

2.  Barroll  v.  Foreman,  86  Md. 
675  (1898);  Home  Ins.  Co.  v.  Caulk, 
86  Md.  385  (1897);  Welch  v.  Bos- 
ton, 208  Mass.  326,  35  L.  E.  A. 
(N.  S.)  330  (1911);  Snodgrass  v. 
Butler,  54  Miss.  45  (1876);  Parker 
V.  Parker,  42  N.  H.  78  (1861). 

But  in  Blue  v.  Watson,  59  Miss. 
619  (1882),  it  was  said  that  this 
objection  is  not  available  on  de- 
murrer. But  relief  by  injunction 
will  be  refused  the  plaintiff  until 
the  fund  is  actually  paid  into  court. 
See  note  10,  post,  p.  242. 


240 


EQUITY  PRACTICE 


prayer  of  the  bill  should  be  that  the  defendants  may  set 
forth  their  respective  claims  and  may  interplead  and 
adjust  their  demands  between  themselves;  and  usually 
the  bill  should  also  expressly  pray  for  an  injunction  to 
restrain  the  proceedings  of  the  claimants  or  either  of  them 
at  law  until  the  right  is  determined.'^ 

In  the  strict  bill  of  interpleader,  no  other  specific  relief 
should  be  asked  against  the  defendants,  but  the  prayer 
for  general  relief  may  be  inserted."*  And  finally  in  all 
bills  of  interpleader  an  affidavit  by  the  plaintiff  must  be 
annexed,  that  he  does  not  collude  with  either  of  the  defen- 
dants •'  and  if  the  bill  is  filed  by  an  officer  in  behalf  of  a 
corporation,  he  must  annex  a  like  affidavit  and  add  that 
to  the  best  of  his  knowledge  and  belief  the  company  does 
not  collude  with  the  defendants.*'    Any  of  the  objections 


3.  story's  Eq.  PI.  (10th  ed.),  Sec. 
297.  See  Chartiers  Oil  Co.  v. 
Moore,  56  W.  Va.  540  (1904). 

4.  Oil  Eun  Petrolemn  Co.  v.  Gale, 
6  W.  Va.  525  (1873).  A  bill  which 
is  insufficient  as  a  bill  of  inter- 
pleader may  sufficiently  show  the 
rights  of  the  parties  so  that  the 
court  may  pass  on  the  questions 
presented  and  give  relief  under  the 
general  prayer.  Stevens  v.  War- 
ren, 101  Mass.  564  (1869). 

5.  Alabama.  Crass  v.  Memphis, 
etc.,  R.  Co.,  96  Ala.  447  (1S92); 
Gibson  v.  Goldthwaite,  7  Ala.  281 
(1845). 

Delaware.  Hastings  v.  Cropper, 
3  Del.  Ch.  165,  180  (1867). 

Illinois.  Byers  v.  Sansome- 
Thayer  Co.,  Ill  111.  App.  575 
(1904);  Curtis  v.  Williams,  35  111. 
App.   518,   523    (1889). 

Maryland.  Home  Ins.  Co.  v. 
Caulk,  86  Md.  385  (1897);  Ammen- 
dale  v.  Anderson,  71  Md.  128 
(1889). 

Mississippi.     Blue  v.  Watson,  59 


Miss.  619  (1882);  Snodgrass  v.  But- 
ler, 54  Miss.  45  (1876). 

New  Hampshire.  Farley  v.  Blood, 
30  X.  H.  354  (1854). 

New  Jersey.  Mt.  Holly  Co.  v. 
Ferree,  17  X.  J.  E.  117   (1864). 

Vermont.  Wing  v.  Spaulding,  64 
Vt.   83    (1891). 

West  Virginia.  Chartiers  Oil  Co. 
V.  Moore,  56  W.  Va.  540  (1904). 

An  oral  affidavit  after  the  bill  is 
filed  is  insufficient.  Home  Ins.  Co. 
v.  Caulk,  86  Md.  385  (1897).  An 
affidavit  sworn  to  by  but  one  of 
several  plaintiffs  is  sufficient.  Bliss 
V.  French,  117  Mich.  538  (1898). 
The  lack  of  an  affidavit  is  waived 
by  failure  to  demur.  Farley  v. 
Blood,  30  X.  H.  354  (1854);  contra, 
Mt.  Holly  Co.  V.  Ferree,  17  N.  J.  E. 
117  (1864).  An  allegation  in  the 
bill  that  there  is  no  collusion  to- 
gether with  an  affidavit  of  the 
truth  of  the  bill  is  sufficient.  Byers 
v.  Sausome-Thayer  Co.,  Ill  111.  App. 
575   (1904). 

6.  Story's  Eq.  PI.  (10th  ed.),Sec. 


ORIGINAL  BILLS 


241 


above  noted  may  be  taken  by  demurrer,'  but  they  may  be 
cured  by  amendment.^ 

§  127.  Procedure  in  interpleader.  When  a  bill  of  inter- 
pleader has  been  filed,  the  defendants  may  of  course 
defend  as  against  the  plaintiff  by  demurrer,  plea  or 
answer  as  on  any  other  bill,  and  the  plaintiff  must  in  such 
case  bring  the  case  to  hearing  in  the  usual  manner.^    If, 


297,  citing  Bignauld  v.  Audlaml,  11 
Sim.  24,  28.  See  also  Hechmer  v. 
Gilligan,  28  W.  Va.  750  (1886). 

7.  See  the  cases  cited  in  the 
foregoing  notes,  in  many  of  which 
demurrer  was  sustained.  Formal 
defects  are  waived  by  going  to 
hearing  without  taking  the  objec- 
tion. Cobb  V.  Eice,  130  Mass.  231 
(1881),  here  it  was  objected  at 
the  hearing  that  there  was  neither 
verification,  affidavit  regarding  col- 
lusion, offer  to  bring  fund  into 
court,  nor  sufficient  statement  of 
defendant 's  claim.  Farley  v.  Blood, 
30  N.  H.  354  (1854). 

But  see  Mt.  Holly  Co.  v.  Ferree, 
17  N.  J.  E.  117,  122  (1864),  hold- 
ing that  the  lack  of  an  affidavit 
against  collusion  may  be  taken  ad- 
vantage of  at  the  hearing. 

8.  Briant  v.  Eeed,  14  N.  J.  E. 
271  (1862). 

9.  Partlowv.  Moore,  184  111. 
119  (1900);  Williams  v.  Mathews, 
47  N.  J.  E.  196  (1890);  Bridesburg 
Co.'s  Appeal,  106  Pa.  275  (1884), 
here  the  evidence  proved  that  the 
plaintiff  was  not  disinterested  and 
the  bill  was  dismissed ;  Wing  v. 
Spaulding  64  Vt.  83  (1891);  French 
v.  Eobrchaud,  50  Vt.  43  (1877), 
plea. 

But  by  N.  J.  Eq.  Eule  221  (as 
amended  1913),  defendants  shall 
not  file  pleadings  to  bills  of  inter- 
pleader except  to  contest  plaintiff's 
rights  to  relief. 

Whitehouse  E.  P.  Vol.  1—16 


At  a  hearing  on  bills  and  an- 
swers, the  answer  of  one  defend- 
ant which  claims  the  fund  may  be 
read  against  a  defendant  who  has 
denied  the  allegation  in  the  bill  in 
regard  to  the  claim  of  the  other 
defendant;  and  the  willingness  of 
the  plaintiff  to  pay  the  person  en- 
titled, need  not  be  established  by 
proof  though  denied  by  the  an- 
swer. Morrill  v.  Manhattan,  etc., 
Co.,   183   111.   260    (1899). 

The  answer  should  not  ask  af- 
firmative relief.  Williams  v.  Mat- 
thews, 47  N.  J.  E.  196  (1890).  Nor 
should  a  cross  bill  be  filed.  Sam- 
mis  V.  L'Engle,  19  Fla.  800  (1883); 
Wakeman  v.  Kingsland,  46  N.  J.  E. 
113    (1889). 

If  one  defendant  answers  and 
the  others  default  the  court  may 
order  immediately  the  payment  of 
the  fund  to  him  and  may  enjoin 
the  others  from  proceedings  against 
the  plaintiff.  Coggswell  v.  Arm- 
strong, 77  111.  139  (1875);  McNa- 
mara  v.  Provident,  etc.,  Assn.,  114 
Fed.  910,  52  C.  C.  A.  530  (1902).  So 
also  if  all  the  defendants  but  one 
file  disclaimers,  and  he  answers 
claiming  the  fund.  Michigan,  etc.. 
Plaster  Co.  v.  White,  44  Mich.  25 
(1880).  But  in  First  Bank  V.  West, 
etc.,  E.  Co.,  46  Vt.  633  (1874),  it 
was  held  to  be  improper  for  the 
lower  court  to  order  the  payment 
of  the  fund  to  a  defendant  de- 
murring,    on     overruling     the     de- 


242 


EQUITY  PRACTICE 


however,  the  pleadings  filed  by  the  defendants  do  not 
question  the  right  of  the  plaintiff  to  file  the  bill,  or  if  this 
(liiestion  having  been  raised  by  the  defendants,  is,  after 
liearing,  decided  for  the  plaintiff,  the  usual  decree  is  that 
upon  bringing  the  money  or  other  property  into  court  ^° 
the  plaintiff  be  dismissed  with  costs  in  his  favor  and  dis- 
charged from  all  liability  to  either  party,  that  the  defend- 
ants be  enjoined  from  proceeding  against  the  plaintiff, 
and  that  the  defendants  interplead.^ ^     This  closes  the 


murrer,  where  the  other  defend- 
ants had  defaulted.  See  Bank  v. 
Bennett,  203  Mass.  480  (1909)  and 
note  13,  post,  p.  243. 

10.  Unless  waived,  the  actual 
deposit  of  the  money  in  court  is 
usually  considered  to  be  a  condi- 
tion precedent  to  the  having  of 
relief  by  plaintiff.  Hastings  v. 
Cropper,  3  Del.  Ch.  165,  179 
(1867);  Home  Ins.  Co.  v.  Caulk,  86 
Md.  385  (1897);  Bliss-  v.  French, 
117  Mich.  538  (1898);  Look  v.  Mc- 
Cahill,  106  Mich.  108  (1895);  Quin 
V.  Hart,  85  Miss.  71  (1904);  Snod- 
grass  V.  Butler,  54  Miss.  45  (1876); 
Metropolitan  Life  Ins.  Co.  v.  Ham- 
ilton, 70  Atl.  677  (N.  J.  E.  1908), 
— bill  in  nature  of  interpleader; 
contra  in  Pennsylvania,  in  inter- 
pleader, filed  according  to  the 
Pennsylvania  practice  in  connec- 
tion with  a  suit  in  assumpsit. 
Barnes  v.  Bamberger,  196  Pa.  S. 
123   (1900). 

At  least  the  failure  to  make 
such  deposit  will  bar  the  plaintiff 
from  recovering  costs.  Gardiner 
Sav.  Inst.  V.  Emerson,  91  Me.  535 
(1898). 

Where  the  bill  tenders  the  en- 
tire sum  due,  the  court  will  direct 
its  full  payment  into  court,  and 
will  order  costs  to  be  taxed  and 
paid   the   plaintiff   by  the    court's 


custodian  of  the  fund.  Modern 
Woodmen  v.  Conner,  129  111.  App. 
651  (1906). 

Where  the  title  to  land  is  the 
matter  in  controversy  the  court 
will  order  deeds  to  be  made  and 
filed  with  the  clerk  subject  to  fur- 
ther order.  Farley  v.  Blood,  30  N. 
H.  354   (1854). 

In  regard  to  costs  on  interpleader 
see  Ch.  XXIX,  Sec.  530,  iwst,  p. 
878. 

11.  Florida.  Sammis  v.  L'Engle, 
19  Fla.  800   (1883). 

Maine.  Savings  Bank  v.  Smith, 
90   Me.  456    (IS97). 

New  Hampshie.  Farley  v.  Blood, 
30   N.   H.   373    (1854). 

New  Jersey.  Penna.  R.  Co.  v. 
Stevenson,  63  N.  J.  E.  634  (1902); 
Hall  V.  Baldwin,  45  N.  J.  E.  858 
(1889). 

New  York.  City  Bank  v.  Bangs, 
2  Paige  (N.  Y.)   570   (1831). 

Vermont.  First  Bank  v.  West 
Co.,  46  Vt.  633   (1874). 

Sometimes,  however,  no  pre- 
liminary decree  dismissing  the 
plaintiff  is  issued,  but  the  case  is 
taken  to  hearing  as  between  the 
defendants  with  the  plaintiff 
still  nominally  a  party  in  interest. 
Gardiner  Sav.  Inst.  v.  Emerson,  91 
Me.  535  (1898);  Rowe  v.  Matteson, 
7    N.    J.    E.    131    (1848);    Willison 


ORIGINAL  BILLS 


243 


case  so  far  as  the  plaintiff  is  concerned  and  lie  cannot  par- 
ticipate in  any  of  the  arguments  or  other  proceedings 
ensuing  thereafter  between  the  defendants,  or  object  to 
the  rulings  of  the  court.^-  After  the  plaintiff  has  thus 
gone  out  of  the  case,  the  court  will  next  proceed  to  con- 
sider the  case  of  the  defendants.  If  pleadings  have  not 
been  filed  by  certain  defendants,  they  will  be  required  to 
file  them,  otherwise  the  case  will  be  taken  pro  confesso 
against  them.^^  In  practice  an  agreement  is  usually  en- 
tered upon  the  docket  that  the  answers  or  other  plead- 


V.  Salmon,  45  N.  J.  E.  257  (1889). 
But  such  a  procedure  is  informal, 
and  when  taken,  no  costs  will  be 
given  the  plaintiff.  Gardiner  Sav. 
Inst.  2.  Emerson,  91  Me.  535 
(1898). 

In  New  Jersey,  by  Eq.  Eule  221 
(as  amended,  1913),  in  causes  con- 
tested against  plaintiffs  they  shall 
serve  a  copy  of  the  decree  of  inter- 
pleader on  all  answering  defend- 
ants, and  until  proof  of  such  ser- 
vice is  filed,  they  shall  not  be  con- 
sidered as  discharged  under  the 
decree.  In  uncontested  causes  in 
twenty  days  after  the  return  day 
of  the  subpoena,  and  in  contested 
causes  within  twenty  days  after 
service  of  above-mentioned  notice 
of  decree,  the  defendants  shall  file 
concise  statements  in  writing  of 
their  several  claims  to  the  fund, 
and  if  they  intend  to  dispute  claims 
of  codefendants  based  on  afiirma- 
tive  defences,  they  shall,  within 
fifteen  days  after  the  above  limited 
time,  file  supplemental  statements 
concisely  setting  forth  such  de- 
fences. At  the  hearing  defendants 
shall  be  confined  to  the  causes 
and  claims  so  stated  unless  other- 
wise ordered. 

12.  Illinois.  Coggswell  v.  Arm- 
strong, 77  111.  139  (1875). 


Massachusetts,  Prov.  Sav.  Instn. 
v.  White,  115  Mass.  112  (1874); 
Houghton  v.  Kendall,  7  Allen  72 
(1863),  a  bill  in  nature  of  inter- 
pleader. 

Michigan.  Atkinson  v.  Flanni- 
gan,  70  Mich.  639  (1888);  Mich., 
etc.,  Plaster  Co.  v.  White,  44  Mich. 
25  (1880);  Anderson  v.  Wilkinson, 
18  Mich.  601   (1848). 

New  Jersey.  Supreme  Council  v. 
Bennett,  47  N.  J.  E.  39   (1890). 

See  First  N.  Bank  v.  West 
E.  Co.,  46  Vt.  633  (1874),  where 
the  plaintiff  was  allowed  an  appeal 
from  a  decree  ordering  him  to  pay 
to  one  defendant,  the  other  having 
failed  to  answer  or  demur. 

13.  Crass  v.  Memphis,  etc.,  Co., 
96  Ala.  447  (1892);  Bank  v.  West 
E.  Co.,  46  Vt.  633  (1874).  In  Bank 
V.  Bennett,  203  Mass.  480  (1909), 
final  decree  was  entered  against  a 
defendant  who  had  no  answered, 
although  decree  pro  confesso  was 
not  taken  against  him,  and  this 
was  sustained  by  the  upper  court. 
Compare  cases  in  last  part  of  note 
9,  <ante,  p.  241. 

See  New  Jersey  Eq.  Eule  223 
above. 


244  EQUITY  PRACTICE 

ings  of  the  defendants  together  with  the  bill  shall  be 
taken  as  the  pleadings  between  the  defendants  in  the 
subsequent  proceedings.^^  If  the  case  is  ready  for  final 
decree,  this  will  issue  at  once;  but  if  not  ready  the  court 
may  find  the  facts,  or  may  direct  an  issue  or  a  reference 
to  a  master,  as  the  circumstances  of  the  case  may  re- 
quire.^ ^  Costs  are  awarded  the  plaintiff  from  the  fund, 
if  the  proceeding  has  been  instituted  by  him  bona  fide, 
and  are  awarded  the  prevailing  defendant  as  against 
other  defendants.^*' 

§  128.  Bills  in  the  nature  of  interpleader.  In  the  strict 
bill  of  interpleader  the  plaintiff  only  asks  to  know  to 
whom  he  shall  rightfully  deliver  the  propert}^  and  to  be 
protected  against  the  claims  of  both  parties,  and  the  only 
decree  to  which  he  is  entitled  is  that  the  bill  is  i^roperly 
filed,  or  in  other  words  that  he  may  bring  the  property 
into  court  and  have  his  costs  and  that  the  defendants  shall 
interplead  and  settle  their  claims  between  themselves.^' 
But  a  bill  in  the  nature  of  interpleader  will  lie  by  a  party 
in  interest  to  ascertain  and  establish  his  own  rights  when 
there  are  conflicting  rights  between  third  persons,  such 

14.  Sav.   Inst.   v.   Small,   90   Me.  New  Jersey.  Hall  v.  Baldwin,  45 
546  (1897).                                                    ^;.  J.  E.  858  (1889) ;  Willison  v.  Sal- 
After     an     interlocutory     decree       mon,  45  N.  J.  E.  257  (1889),  refer- 

dismissing    the    plaintiff    in    inter-  ence;  Condict  v.  King,  13  N.  J.  E. 

pleader,  a  defendant  cannot  demur  375    (1861);    Rowe   v.   Matteson,   7 

to   the  answer   of   another   defend-  N.  J.  E.  131   (1848). 

ant.     Bank  v.   Bennett,  203  Mass.  Vermont.   Howland  Bros.  v.  Barre 

480    (1909)  J    Ee    Order    of    Golden  Sav.    Bank,    88    Atl.    732     (1913); 

Cross,  74  N.  H.  466   (1908).  Bank  v.  West,  etc.,  Co.,  46  Vt.  633 

15.  Alabama.    Gibson  v.  Goldth-  (1874). 

waite,  7  Ala.  281,  42  Am.  Dec.  592  Causes   may  be   brought    on   for 

(1845),    decree    by    the    chancellor  final  hearing  by  any  defendant.  N. 

without  a  reference.  J.  Eq.  Rule  221  (as  amended,  1913). 

Florida.  Sammis   v.   L  'Engle,    19  16.  In  regard   to   costs  on  inter- 
na. 800  (1883),  reference.  pleader   see    Ch.   XXIX,   Sec.    530, 

Mississippi.  Quin     v.     Hart,     85  post,  p.  878. 

Miss.  71  (1904).  17.  Story's    Eq.    PI.    (10th    ed). 

New  HampsMre.  Farley  v.  Blood,  Sec.    297.      See    cases    cited   under 

30  N.  H.  354  (1854).  §  127,  ante. 


ORIGINAL  BILLS 


245 


that  the  plaintiff  has  an  independent  ground  for  equitable 
relief  aside  from  the  interpleader  which  he  seeks.  So  if  a 
mortgagor  wishes  to  redeem  the  mortgaged  estate,  and 
there  are  conflicting  claimants  to  the  mortgage  money,  a 
bill  in  the  nature  of  interpleader  is  the  proper  remedy  in 
order  to  ascertain  to  whom  he  should  rightfully  pay  the 
money  and  also  obtain  a  decree  of  redemption.^^  The 
interpleader  is  incidental  to  the  principal  equitable  relief 
sought,  the  decree  of  redemption. 

The  affirmative  relief  which  the  plaintiff  seeks  for  him- 
self however,  must  be  equitable,^^  and  while  showing  his 
own  rights  to  such  relief,  the  bill  must  not  on  the  other 
hand  allege  that  neither  of  the  defendants  have  any  right 
or  interest  in  the  subject  matter  of  the  action.^^  The  bill 
should  pray  that  the  defendants  may  interplead  and  that 
the  court  may  adjudge  to  whom  the  property  belongs. ^^ 
No  affidavit  denying  collusion  is  required  in  this  bill,^^ 
and  costs  are  in  the  discretion  of  the  court. ^^ 


18.  Koppinger  v.  O  'Donnell,  16 
E.  I.  417  (1889). 

Further  examples  of  bills  in  the 
nature  of  interpleader  are:  Newall 
V.  Kastens,  70  111.  156  (1873); 
Metropolitan  Life  Ins.  Co.  v.  Ham- 
ilton, 70  Atl.  677  (N.  J.  E.,  1908); 
Illingsworth  v.  Eowe,  52  N.  J.  E. 
360  (1894);  Bedell  v.  Hoffman,  2 
Paige  (N.  Y.)  199  (1831);  McNa- 
mara  v.  Provident,  etc.,  Assn.,  114 
Fed.  910,  52  C.  C.  A.  530  (1902); 
Provident  Life,  etc.,  Soc.  v.  Loch, 
115  Fed.  357  (C.  C.  1901). 

Examples  of  bills  held  insufficient 
as  bills  in  the  nature  of  inter- 
pleader are:  Home  Ins.  Co.  v. 
Caulk,  86  Md.  385  (1897);  Pusey, 
etc.,  Co.  V.  Miller,  61  Fed.  401  (C. 
C.  1894). 

It  has  been  stated  in  a  few  eases 
that  even  a  bill  in  the  nature  of 
interpleader  cannot  be  brought 
where  the  plaintiff  is  interested  in 


the  fund.  Crass  v.  Memphis,  etc., 
R.  Co.,  96  Ala.  447  (1892);  Blue  v. 
Watson,  59  Miss.  619  (1882).  But 
this  can  hardly  be  correct.  See 
Stephenson  v.  Burdett,  56  W.  Va. 
109,  10  L.  E.  A.  (N.  S.)  748 
(1904). 

19.  Killian  v.  Ebbinghaus,  110 
U.  S.  568,  28  Fed.  246   (1883). 

20.  McHenry  v.  Hazard,  45  Barb. 
(N.  Y.)  657  (1866). 

21.  Corn  v.  Fox,  61  N.  Y.  264, 
272   (1874). 

22.  Van  Winkle  v.  Owen,  54  N. 
J.  E.  253  (1896);  Koppinger  v. 
O 'Donnell,  16  E.  L  417   (1889). 

23.  Bedell  v.  Hoffman,  2  Paige 
(N.  Y.)  199  (1831);  Graves  v  Sen- 
tell,  153  U.  S.  465,  38  L.  ed.  785 
(1894). 

Affirmative  relief  to  a  defendant 
in  a  bill  in  the  nature  of  inter- 
pleader can  be  given,  but  only 
under  a  cross  bill  or  answer  in  the 


246 


EQUITY  PRACTICE 


§  129.  Bills  for  instructions.  Bills  in  the  nature  of  bills 
of  interpleader,  but  more  commonly  known  as  bills  for  the 
construction  of  wills,  or  bills  for  instructions,  are  often 
brought  under  general  chancery  powers  by  executors  or 
administrators  or  other  persons  interested  under  the  will 
or  by  trust  officers  under  a  will  or  otherwise  where  there 
are  conflicting  claims  to  the  estate,  making  all  persons 
interested  in  the  estate  parties,  and  asking  the  direction 
of  the  court  for  the  proper  mode  of  administering  the  will 
or  trust  and  for  protection  in  the  disposal  of  the  prop- 
erty.-^ Bills  for  this  purpose  may  also  be  brought  under 
special  statutory  jDrovisions  in  many  of  the  states.-^ 


nature  of  a  cross  bill.  Heatli  v. 
Hurless,  73  HI.  323   (1874). 

24.  Alabama.  Carroll  v.  Eichard- 
son,  87  Ala.  605  (1888);  Cowles  v. 
Pollai-a,  51  Ala.  4-45  (1874). 

Illinois.  Parsons  v.  Miller,  189 
111.  107  (1901);  Longwith  v.  Biggs, 
123  111.  258  (1887);.  Strubher  v. 
Belsey,  79  111.  307   (1875). 

Maryland.  Heald  v.  Heald,  56 
Md.  300   (1881). 

Massachusetts.  Heard  v.  Bead, 
169  Mass.  216   (1897). 

Michigan.  Van  Derlvn  v.  Mack, 
137  Mich.  146,  66  L.  R.  A.  437,  109 
A.  S.  E.  669   (1904). 

New  Hampshire.  Goodhue  v. 
Clark,  37  N.  H.  525  (1859);  Wheeler 
V.  Perry,  18  N.  H.  307  (1846). 

New  Jersey.  Hiles  v.  Garrison, 
70  N.  J.  E.  605  (1906);  Zabriskie 
V.  Huyler,  64  N.  J.  E.  794  (1902). 

West  Virginia.  Martin  v.  Mar- 
tin, 52  W.  Va.  381  (1903). 

United  States.  Colton  v.  Colton, 
127  U.  S.  300,  32  L.  ed.  138  (1888); 
Wood  V.  Paine,  66  Fed.  807  (C.  C. 
1895);  Parkes  v.  Aldridge,  F.  C. 
10,755    (C.   C.   1879). 

In  most  of  the  above  cases  the 
construction   of  the  will  was   inci- 


dental to  other  equitable  relief; 
and  aside  from  statute  it  is  usually 
held  that  the  bill  for  instructions 
must  be  based  on  some  independent 
equitable  ground  of  jurisdiction, 
as  for  instance  trusts,  and  cannot 
be  brought  when  the  remedy  at 
law  is  adequate. 

Illinois.  Mansfield  v.  Mansfield, 
203  111.  92   (1903). 

Maryland.  Woods  v.  Fuller,  61 
Md.  457   (1883). 

Michigan.  Warren  v.  Warren, 
151  Mich.  95   (1908). 

New  Hampshire.  Greeley  v. 
Nashua,  62  X.  H.  166   (1882). 

New  Jersey.  Bevans  v.  Bevans, 
69  X.  .J.  E.  1   (1905). 

Vermont.  Morse  v.  Lyman,  64 
Yt.   167   (1891). 

Virginia.  Hart  v.  Darter,  107  Va. 
310,  15  L.  E.  A.  (X.  S.)  599  (1901). 

West  Virginia.  Martin  v.  Martin, 
52  W.  Va.  381   (1903). 

Contra,  Carroll  v.  Richardson,  87 
Ala.  605  (1888). 

25.  Illinois.  Stoff  v.  McGinn,  178 
111.  46    (1899). 

Maine.  Haseltine  v.  Shepherd,  99 
Me.  495   (1905);   Page  v.  Marston, 


ORIGINAL  BILLS 


247 


In  such  bills,  all  persons  interested  in  the  subject  matter 
and  all  whom  it  is  desired  to  conclude  by  the  decree,  must 
be  made  parties,^''  and  the  executor,  administrator  or  trus- 
tee should  not  take  any  part  in  the  proceedings  or  argu- 
ments so  far  as  the  rights  of  the  claimants  are  concerned.-^ 
The  portion  of  the  will  or  of  the  trust  instrument  to  be 
construed  should  be  set  out  in  the  bill  either  in  full  or  in 
substance,  the  bill  should  state  the  conflicting  claims 
which  arise  or  are  likely  to  arise  and  should  pray  for  a 
construction  of  the  document  and  the  determination  of  the 
conflicting  claims;  and  may  conclude  with  a  prayer  for 
general  relief.^^ 

94  Me.  342  (1900);  Eichardson  v. 
Knight,  69  Me.  285  (1879). 

Massachusetts.  Ladd  v.  Chase, 
155  Mass.  417  (1892);  Swasey  v. 
Jaques,  144  Mass.  135,  59  A.  E.  65 
(1887).  But  see  Austin  v.  Bailey, 
163  Mass.  270   (1895). 

New  Jersey.  Stevens  v.  Dewey, 
55  N.  J.  E.  232   (1897). 

Rhode  Island.  Re  Manchester,  22 
E.  I.  636   (1901). 

Vermont.  Harris  v.  Harris,  79 
Yt.  22  (1906);  Blair  v.  Johnson,  64 
Vt.   598    (1892). 

In  Maryland,  under  the  code 
provision  permitting  declaratory 
decrees,  it  seems  doubtful  whether 
suits  may  be  brought  simply  for 
the  construction  of  wills.  Wahl 
V.  Brewer,  80  Md.  237  (1894); 
Wethered  v.  Baltimore,  etc.,  Co. 
79  Md.  153,  28  Am.  Dec.  12  (1894); 
Pennington  v.  Pennington,  70  Md. 
418    (1889). 

26.  Illinois.  Penna.,  etc.,  Co.  v. 
Bauerle,  143  111.  459   (1892). 

Maine.  Hawes  v.  Bragdon,  66 
Me.  534   (1877). 

Maryland.  Evans  v.  Iglehart,  6 
G.  J.  171   (1834). 

Massachusetts.  Heard  v.  Eead, 
169  Mass.  216   (1897). 


New  Jersey.  Waker  v.  Booraem, 
68   X.  J.  E.  345   (1904). 

Tennessee.  Kotzenberger  v. 
Weaver,  110  Tenn.  620  (1903). 

Virginia.  Gaddess  v.  Norris,  102 
Va.  625   (1904). 

West  Virginia.  Magers  v.  Ed- 
wards, 13  W.   Va.  822    (1878). 

United  States.  Stevens  v.  Smith, 
126  Fed.  706,  61  C.  C.  A.  624 
(1903). 

27.  Houghton  v.  Kendall,  7  Al- 
len (Mass.)   72  (1863). 

But  if  no  objection  is  made 
plaintiff  may  present  claims  for 
his  personal  expenses.  Batchelder, 
Petr.,  147  Mass.  465   (1888). 

28.  See  the  following  cases  in 
which  the  necessary  allegations 
and  prayers  are  discussed. 

Alabama.  Carroll  v.  Eichardson, 
87  Ala.  605  (1888). 

Delaware.  Miller  v.  Cooch,  5 
Del.  Ch.  161  (1877). 

Massachusetts.  Parker  v.  Par- 
ker, 119  Mass.  478  (1876);  Putnam 
v.  Collamore,  109  Mass.  509  (1872), 

New  Hampshire.  Goodhue  v. 
Clark,  37  N.  H.  525   (1859). 


248  EQUITY  PRACTICE 

The  necessary  allegations  and  prayers  in  bills  of  this 
character  are  fully  treated  elsewhere  in  this  work.-^ 

New     Jersey.       Annin    v.     Van-  United  States.     Sherman  v.  Am. 

doren,  14  N.  J.  E.  135   (1861).  Cong.  Assn.,  113  Fed.  609,  51  C.  C. 

Rhode      Island.         Goddard      v.  A.  329  (1902);  Wood  v.  Paine,  66 

Brown.  12  R.  I.  31   (1878).  Fed.  807  (C.  C.  1895). 

Vermont.     Blair    v.    Johnson,    64  29.  See,  in  the  third  volume,  the 

Vt.  598   (1892).  forms  of  bills  for  instructions. 


CHAPTER  VI 
BILLS  NOT  ORIGINAL 

§  130.  Classification.  Bills  not  original  are  bills  sup- 
plementing or  relating  to  some  former  suit  between  the 
same  persons.  They  include  two  classes:  I,  Bills  which 
are  in  addition  to  or  continuance  of  an  original  bill,  or 
both;  ^  II,  Bills  not  in  addition  to  or  continuance  of  for- 
mer bills,  but  merely  occasioned  by  or  relating  to  them, 
and  brought  for  the  purpose  of  cross  litigation  or  of 
reversing  or  impeaching  some  decree  or  order  of  the  court, 
or  of  carrying  it  into  execution.^ 

The  first  class — bills  not  original  supplementing  a  for- 
mer bill — includes  five  kinds  of  bills:  1,  supplemental 
bills;  2,  bills  of  revivor;  3,  bills  of  revivor  and  supple- 
ment; 4,  bills  in  the  nature  of  supplemental  bills;  and  5, 
bills  in  the  nature  of  revivor.  The  first  three  kinds  just 
mentioned  are  in  the  strictest  use  of  the  term  bills  not 
original.    They  present  no  features  of  original  bills.    The 

1.  Mitford's  Eq.  PI.  (Tyler's  ed.)  Lord  Eedesdale's  classification, 
p.   153.  the  class  III.  of  his  division  being 

2.  Mitford's  Eq.  PI.  (Tyler's  included  under  the  head  of  bills 
ed.)  pp.  127-130,  Story's  Eq.  PI.  not  original,  since  though  not  sup- 
(10th  ed.)  Sec.  20.  Lord  Eedes-  plementing  a  former  bill,  they  are 
dale  in  his  treatise  on  the  subject  occasioned  by  or  relate  to  one,  and 
(Mitford's  Eq.  PL)  which  is  the  therefore  properly  come  under  the 
fountain  head  of  nearly  all  our  general  definition  of  bills  not  origi- 
modern  text  on  equity  pleading,  nal  above  given,  viz.,  "bills  sup- 
divides  bills  into  three  classes:  I.,  plementing  or  relating  to  some 
original  bills;  IL,  bills  not  original  former  suit."  Both  Mr.  Cooper 
and  IIL,  bills  in  the  nature  of  (Eq.  PI.  62)  and  Judge  Story  (Eq. 
original  bills  but  occasioned  by  a  PL,  10th  ed.,  Sec.  20)  include  in 
former  bill.  The  classification  em-  this  way  class  IIL  under  bills  not 
ployed  in  the  text  above,  it  will  be  original. 

seen,  is  merely  a  readjustment   of 

249 


250  EQUITY  PRACTICE 

other  two  kinds  resemble  original  bills,  in  that  although 
sii})l)lementiug  a  former  suit,  they  contain  new  facts  or 
new  parties;  in  other  words,  they  are  bills  not  original, 
but  in  the  nature  of  original  bills.  These  two  kinds  of 
bills  will  be  most  conveniently  considered  in  connection 
with  supplemental  bills  and  bills  of  revivor,  of  whose 
nature  they  partake. 

The  second  class — bills  not  original,  not  supplementing 
but  relating  to  some  former  bill — includes  six  kinds:  1, 
cross  bills;  2,  bills  of  review  for  error  apparent;  3,  bills 
of  review  for  new  facts;  4,  bills  in  the  nature  of  review,  to 
impeach  decrees  for  fraud,  accident,  or  mistake;  5,  bills 
for  relief  against  judgments  of  courts  of  law;  and  6,  bills 
to  enforce  decrees.^  With  the  exception  of  bills  of  review 
for  error  apparent,  and  of  some  bills  to  enforce  decrees, 
none  of  the  kinds  of  bills  just  mentioned  are  in  the  strict 
use  of  the  tenn  bills  not  original.  They  relate  to  some 
former  suit;  but  either  the  suit  was  not  between  the  same 
persons,  or  new  facts  are  presented.  In  other  words,  with 
the  exceptions  just  stated,  these  are  bills  not  original,  but 
in  the  nature  of  original  bills. 

§  131.  Class  I — Bills  supplementing  or  reviving  former 
bills — Defects  and  abatements.  The  sole  effect  of  Class  I 
of  bills  not  original  is  to  remedy  defects  and  abatements 
of  the  original  bill.  Before  proceeding  therefore  to  dis- 
cuss these  different  bills  separately,  it  will  be  well  to  con- 
sider briefly  what  constitutes  such  defects  or  abatements. 

A  suit  may  be  defective  either  in  its  original  structure 
.or  by  reason  of  some  subsequent  event  for  want  of  mate- 
rial facts  or  necessary  parties.  Such  defects  are  remedied 
by  amendments  when  allowable,  otherwise  by  supple- 
mental bills  or  bills  in  their  nature.  But  when  by  some 
subsequent  event  the  suit  becomes  defective  as  to  parties 

3.     Also  belonging  in   this   class  are   of  no  practical  importance  in 

are  bills  in  the  nature  of  bills  of  this   country.      See   See.   150,  post, 

review  after  decree  pronounced  but  p.  294. 
before    decree   enrolled:    but   these 


BILLS  NOT  ORIGINAL 


251 


on  one  or  both  sides,  so  that  there  is  no  person  before  the 
court  by  whom  or  against  whom  the  suit  in  whole  or  in 
I^art  can  be  prosecuted,  the  defect  amounts  to  an  abate- 
ment.^ An  abatement  in  the  sense  of  the  common  law  is 
the  entire  overthrow  and  death  of  the  suit,  but  in  equity  a 
suit  when  abated  is  merely  suspended  for  want  of  parties 
capable  of  proceeding  therein  and  may  therefore  be 
revived.^  This  is  accomplished  in  general  chancery  prac- 
tice *by  bills  of  revivor,  revivor  and  supplement,  or  bills 
of  that  nature. 

For  example,  if  a  party  becomes  bankrupt  during  a  suit 
the  suit  becomes  defective  merely,^'  but  the  general  rule  is 
that  the  death  of  a  necessary  party  during  the  suit  creates 
an  abatement  of  the  suit.^  Death  is  practically  the  only 
cause  of  abatement.^    But  the  death  of  a  party  does  not 

7.  Brooks  v.  Jones,  5  Lea  (Tenn.) 
244;  and  see  cases  under  §  137,  post, 
p.  263.  The  dissolution  of  a  corpo- 
ration seems  to  produce  the  same 
result.  Hemingway  v.  Stansell,  106 
U.  S.  399  (1882).  But  see  Keokuk, 
etc.,  Co.  V.  Scotland  County,  152 
U.  S.  318  (1893);  Griswold  v.  Hil- 
ton, 87  Fed.  256   (C.  C.  1898). 

8.  Formerly  the  marriage  of  a 
female  plaintiff  was  sufficient  to 
cause  an  abatement  of  the  suit, 
but  under  the  statutes  generally 
giving  a  married  woman  the  right 
to  sue  and  be  sued  as  if  she  were 
sole  (see  Sec.  43,  ante,  p.  54),  the 
necessity  for  an  abatement  in  such 
a  case  no  longer  exists.  It  is  prob- 
able that  the  court  would  require 
the  proceeding  after  marriage  to 
be  in  the  plaintiff's  married  name 
and  would  allow  an  amendment  for 
that  purpose.  Such  was  the  case 
where  a  female  plaintiff  married 
and  her  husband  died  before  re- 
vivor; there  was  no  abatement  but 
the  subsequent  proceedings  were 
under  her  married  name.    The  mar- 


4.  Abatement  is  simply  a  greater 
or  more  vital  defect  as  to  want  of 
parties,  which  completely  suspends 
the  suit  as  it  stands.  A  defect 
as  to  a  party  therefore  tends  to 
become  an  abatement  in  propor- 
tion as  the  interest  of  that  party 
affects  the  suit.  Story's  Equity 
Pleading   (10th  ed.)   Sec.  329. 

5.  Zoellner  v.  Zoellner,  46  Mich. 
511  (1881);  Clarke  v.  Mathewson, 
12  Pet.  164   (1838). 

When  a  suit  in  the  Federal 
courts,  grounded  in  diversity  of 
citizenship,  abates  for  want  of 
parties,  the  representative  of  plain- 
tiff, though  he  be  of  same  state 
as  defendant,  may  revive  the  ac- 
tion. Hone  V.  Dillon,  29  Fed.  465 
(C.  C.  1886). 

6.  The  suit  is  therefore  not 
abated.  Esterbrook  v.  Ahern,  31 
N.  J.  Eq.  3  (1879);  Northman  v. 
Liverpool,  etc.,  Co.,  1  Tenn.  Ch. 
312  (1873).  But  see  Brandon  v. 
Cabiness,  10  Ala.  155  (1846);  Mc- 
Donald V.  McMahon,  66  Ala.  115 
(1880). 


252  EQUITY  PRACTICE 

cause  abatement  in  all  cases:  for  example,  where  the  whole 
interest  or  liability  of  the  deceased  plaintiff  or  defendant 
survives  to  or  devolves  upon  other  parties  to  the  suit.^ 
So  in  a  bill  by  joint  tenants,  if  one  dies  the  suit  will  not 
abate  since  the  whole  interest  belongs  to  the  survivor. 
But  it  is  otherwise  of  course  in  the  case  of  tenants  in  com- 
mon.^"^  Again,  where  the  interest  of  the  party  dying  so 
determines  that  it  can  no  longer  affect  the  suit  and  no 
person  becomes  entitled  thereupon  to  the  same  interest, 
which  happens  in  the  case  of  a  tenant  for  life,  or  a  person 
having  a  temporary  or  contingent  interest  or  an  interest 
defeasible  upon  a  contingency,  the  suit  does  not  abate  as 
to  remaining  parties.^ ^  So  if  the  plaintiff  in  a  bill  of  inter- 
pleader should  die  after  a  decree  that  the  defendants 
interplead  there  will  be  no  abatement  since  the  plaintiff 
has  no  longer  any  interest  in  the  suit.^-  So  in  a  suit  by  or 
against  an  officer  in  his  official  capacity  his  death  will  not 
abate  the  suit  since  his  successor  becomes  the  party  to 
the  suit.^^  Nor  does  the  coming  of  age  of  an  infant  abate 
the  suit.^^ 

riage    of   a   female    defendant    has  the  suit  alone  as  in  a  bill  by  sev- 

never   abated  a  suit  but  she  like-  eral   creditors   in   behalf   of   them- 

wise  should  have  her  new  name  in  selves  and  all  other  creditors,  the 

the  subsequent  proceedings.     Upon  death    of    one    will    not    abate    the 

the  foregoing  points  see  the  follow-  suit.        Story 's     Equity     Pleading 

ing  cases:   Douglas  v.   Sherman,   2  (10th  ed.),  Sec.  357,  citing  Masters 

Paige   (X.  Y.)   360   (1S31);  Quack-  v.  Barnes,  7  Jur.  1167. 

enbush   v.   Leonard,   10   Paige   131  10.  Fallowes    v.    Williamson,    11 

(1843);    Maryland    Code,    Art.    16,  Ves.   306. 

Sec.   13;    Glenn  v.   Clapp,  11   G.   &  11.  But  if  such  party  is  the  sole 

J.     (Md.)     1     (1839);    Boynton    v.  plaintiff   or   defendant   the   suit   is 

Boynton,  21  N.  H.  246  (1850);  Peer  necessarily  at  an  end. 

V.    Cookerow,    14    X.    J.    Eq.    361  12.  Mitf  ord  's  Eq.  PI.  by  Jeremy, 

(1862).  60. 

9.  As  where  a  bill  is  filed  by  or  13.  Winthrop  v.  Farrar,  11  Allen 

against   trustees   or   executors   and  (Mass.)  398  (1865) ;  Felts  v.  Mayor 

one  dies,  not  having  possessed  any  of   Memphis,   2   Head    (Tenn.)    650 

of  the  property  in  question  or  done  (1859). 

any  act  relating  to  it  which  may  14.  Campbell  v.  Brown,  5  Paige 

be  questioned  in  the  suit,  or  where  (X.  Y.)   34  (1835). 
the   surviving  parties   can   sustain 


BILLS  NOT  ORIGINAL 


253 


In  general  no  proceedings  can  be  had  during  an  abate- 
ment except  for  a  revivor,  or  to  prevent  injury  to  the  sur- 
viving parties  where  those  entitled  omit  to  revive/^  or  to 
preserve  property  in  dispute,  ^'^  or  to  punish  a  party  for 
breach  of  an  injunction,^^  or  to  set  aside  proceedings  in 
the  master's  office.^^  A  receiver  will  not  be  discharged 
on  abatement  of  a  suit  without  a  special  order  of  court.^^ 
The  statute  of  limitations  runs  pending  an  abatement,-'^ 

§  132.  Amendments  may  serve  as  supplemental  bills 
and  bills  of  revivor.  The  statutes  or  chanceiy  rules  of 
many  of  the  states  provide  that  amendments  may  serve 
the  purpose  of  bills  of  revivor  or  bills  supplemental,  or 
bills  of  that  nature,  but  usually  they  should  be  served  as 
such  bills  should  be  served.-^  The  use  of  amendments  in 
place  of  such  bills,  however,  is  not  made  obligatory  by  the 
wording  of  these  rules,^-  and  though  an  amendment  is 
usually  preferable  as  being  simpler  and  more  convenient, 
it  is  still  necessary  to  know  in  what  cases  supplemental 


15.  Griswold  v.  Hill,  1  Paine  483, 
F.  C.  5,834  (C.  C.  1825). 

16.  Washington  Ins.  Co.  v.  Slee, 
2  Paige   (N.  Y.)   365   (1831). 

17.  Hawley  v.  Bennett,  4  Paige 
(N.  Y.)  163  (1833).  Where  in- 
junction was  sought  and  the  suit 
became  abated,  the  defendant  may 
have  an  order  that  plaintiff's  repre- 
sentatives revive  within  a  reason- 
able time  or  that  the  injunction  be 
dissolved.  Leggett  v.  DuBois,  2 
Paige  (N.  Y.)  211  (1830),  here 
sixty  days  was  the  time  fixed. 

18.  Quaekenbush  v.  Leonard,  10 
Paige  131,  138  (1843). 

19.  High  on  Eeceivers  (4th  ed.), 
Sec.  833,  citing  Pogett  v.  Brooks, 
140  Ala.  257   (1903). 

20.  Mason  v.  Hartford,  etc.,  E. 
Co.,  19  Fed.  53  (C.  C.  1884);  and 
see  Sheinwald  V.  Lewis,  69  Fed. 
487  (D.  C.  1895);  Hubbell  v. 
Lankenan,  63  Fed.  881  (C.  C.  1894) ; 


Rieley  v.  Kinzell,  85  Va.  480  (1888), 
in  which  delay  was  treated  solely 
as  a  question  of  laches.  It  seems 
that  the  statute  does  not  run  upon 
a  decree  to  account.  Hollings- 
head  's  Case,  1  P.  Wms.  743. 

21.  Alabama.  Eq.  Eules  45,  102, 
103,  104.  Eevivor  by  amendment 
is,  however,  irregular.  Floyd  v. 
Bitter,  65  Ala.  501  (1880). 

Delaware.  Eq.    Eules    51-53. 

Maine.  Eq.  Rule  21. 

Massachusetts.     Eq.  Eule  25. 

New  Hampshire.    Eq.  Rule  102. 

New  Jersey.  Comp.  Stat. ' '  Abate- 
ment," Sees.  4-9;  Eq.  Eules  210, 
210  (a),  210  (b). 

Pennsylvania.  Eq.  Eule  53. 

Rhode  Island.  G.  L.,  Ch.  289,  Sec. 
10;  Eq.  Eule  10. 

Vermont.  Eq.  Eule  11. 

United  States.  Eq.  Eules   19,  45. 

22.  Except  in  Pennsylvania,  Eq. 
Eule  53. 


254  EQUITY  PRACTICE 

bills,  bills  of  revivor,  and  the  like  will  or  \rill  not  lie  in 
order  to  determine  whether  the  amendment  desired  may 
be  made.  Consequently  a  bfief  re\'iew  of  the  nature  and 
frame  of  such  bills  will  l^e  required. 

§  133.  Supplemental  bills.  A  supplemental  bill  may  be 
defined  as  an  addition  to  the  origrinal  bill  to  supply  some 
omission  therein  which  cannot  be  supplied  by  amend- 
ment.-* 

The  defects  which  supplemental  bills  serve  to  remedy 
are,  generally  si>eaking,  of  three  kinds:  1.  where  the 
defect  in  the  original  bill  arises  from  the  omission  of  some 
material  fact  which  existed  before  the  filing  of  the  bill 
but  which  at  the  stage  which  the  cause  has  reached  cannot 
be  added  by  amendment ;  -*  2.  where  it  is  desired  to  bring 
before  the  court  some  party  who  is  a  necessary  party  to 
the  proceedings  and  who  has  not  been  introduced  at  the 
stage  of  the  cause  in  which  an  amendment  for  this  pur- 
pose may  be  made;  -^  3.  where  new  events  or  new  matters 

23.  Mitford's  Eq.  PL  (Trier's  final  hearing,  in  order  to  set  up  a 
ed.),  pp.  160-162;  Story's  Eq.  PL  new  defense.  HeaJev  lee,  etc.,  Co. 
(10th  ed.).  See.  333;  Kenne-iy  v.  v.  Green.  l54  Fe«L  -51-5  (C.  C.  1911). 
Georgia  St.  Bank,  8  How.  5S6,  12  25w  Calwell  t.  Boyer,  S  G.  i  J. 
t.  ed.  1,2C»9  (1S50;;  Lang  r.  Choe-  (Md.)  136  (1S36);  Seymour  v. 
taw,  ete-,  Co.,  160  Fed.  35,  87  C.  a  Long  Doek  Co.,  17  X.  J.  Eq.  169 
A.  307  (1908).  (18W);    Farmers'    Loan    &    Trust 

24.  Story's  Eq.  PL  (10th  ed.),  Co.  v.  Seymour,  9  Paige  (X.  Y.) 
See.  333.  This  may  be  because  the  538  (1842) ;  Ensworth  v.  Lambert, 
importance  of  the  faet  was  not  un-  4  Johns.  Ch.  (X.  T.)  605  (1820); 
derstood  or  its  existence  known  Smith  v.  St.  Louis  Co.,  3  Tenn.  Ch. 
until  after  the  filing  of  the  bilL  151  (1S76);  Wilson  v.  Wilson,  93 
Owens  V.  Love.  9  Fla.  325  (1861);  Va.  -546  (1896);  Secor  v.  Singleton, 
Do^ige  T.  Dodge,  29  X.  H.  177  41  Fed.  725  (C.  C.  1890).  Xo  sup- 
(1854).  plemental  bill  lies  merely  to  drop 

A   supplemental   bill    cannot   be  out     a    defendant.      Mosgrore    v. 

filed  after  an  interlocutory  decree  Kountze.  14  Fed.  315  (C.  C.  1882). 

merely    to     admit     new    evidence.  Sometimes  the  omission  is  due  to 

where  the  party  might  by  due  dili-  newly     acquired     knowledge,     and 

gence  have  intro<luced  it  originally  sometimes  to  the  occurrence  of  new 

in  the  cause  or  where  he  had  full  facts,  but  most  bills  which  bring 

means    of    knowledge    within    his  in  new  parties  are  bills  in  nature 

reach.      Mosgrove    t.    Kountze,    14  of  supplemental   bills  rather   than 

Fed.  315   (C.  C.  1882).     Xor  after  strictly  supplemental  bills. 


BILLS.  NOT  ORIGINAL 


255 


have  occurred  since  the  filing  of  the  bill,^"  for  the  reason 
that  such  facts  cannot  generally  be  introduced  by  amend- 
ment.^"^ Such  new  matters  must  be  facts  and  circum- 
stances material  and  beneficial  to  the  merits  of  the  orig- 
inal cause  and  not  merely  evidence  upon  facts  already  in 
issue.-'^ 

Supplemental  bills  may  be  brought  on  behalf  of  the 
defendant  as  well  as  the  plaintiff.  Thus  where  some  fact 
material  to  the  defence  has  occurred  since  the  filing  of  the 
answer  the  remedy  is  not  by  amendment  of  answer  but 
by  supplemental  bill.-^ 


26.  Alabama.  Durr  v.  Hanover 
Nat.  Bank,  170  Ala.  260  (1910). 

Florida.  Bloxham  v.  Florida, 
etc.,  R.  Co.,  39  Fla.  243  (1897),  sup- 
plementary bill  in  nature  of  bill  of 
review. 

Illinois.  Mix  v.  Beach,  46  111. 
311   (1867). 

Maine.  Birmingham  v.  Lesan, 
77  Me.  494  (1885). 

Massachusetts.  Fordyce  v.  Dilla- 
way,  212  Mass.  404  (1912);  Regis 
V.  Jaynes  &  Co.,  191  Mass.  245 
(1906). 

Michigan.  Long  v.  Shroeder,  162 
Mich.  690  (1910);  Michigan  Iron, 
etc.,  Co.  v.  Nester,  147  Mich.  590 
(1907). 

New  Hampshire.  Gove  v.  Ly- 
ford,  44  N.  H.  525  (1863). 

New  Jersey.  O'Donnell  v.  Mc- 
Cann,  77  N.  J.  Eq.  188  (1910);  Ed- 
wards v.  National,  etc..  Association 
(N.  J.  Eq.),  58  Atl.  527  (1904). 

Tennessee.  Bannon  v.  Jackson, 
121  Tenn.  381   (1908). 

Virginia.  Bibb  v.  Am.  Coal  & 
Iron  Co.,  109  Va.  261  (1909). 

United  States.  St.  Louis,  etc., 
Co.  V.  Hadley,  155  Fed.  220  (1907); 
Reeve  v.  Land  Co.,  141  Fed.  821,  72 
C.  C.  A.  287   (1905). 

These  new  matters  must  not  be 


such  as  change  the  rights  or  inter- 
ests of  the  parties  before  the  court, 
but  must  merely  refer  to  and  sup- 
port the  rights  and  interests  al- 
ready in  the  bill,  as  they  then 
would  not  be  supplemental  bills, 
strictly  speaking,  but  bills  in  the 
nature  of  supplemental  bills  (see 
8ec.  136,  post,  p.  262). 

27.  Except,  of  course,  under  the 
rules  of  court  discussed  under  Sec. 
132,  ante,  p.  253.  See  Birmingham 
V.  Lesan,  77  Me.  494  (1885). 

27a.  Martin  v.  Sexton,  112  111. 
App.  199  (1904);  Barriclo  v.  Tren- 
ton, etc.,  Co.,  13  N.  J.  Eq.  154 
(1860);  Atwood  v.  Shenandoah 
Valley,  etc.,  Co.,  85  Va.  966  (1889); 
Lyster  v.  Stickney,  12  Fed.  609  (C. 
C.  1882);  Jenkins  v.  Eldredge, 
3  Story  299,  Fed.  Cas.  7,267  (C.  C. 
1845). 

28.  Such  bills,  though  often 
called  supplemental,  as  in  the  text 
above,  are  more  properly  to  be 
classified  under  cross  bills,  Sec. 
141,  post,  p.  269.  In  Bernhard  v. 
Bruner,  65  111.  App.  641  (1895), 
where  a  bill  was  brought  to  set 
aside  a  deed  which  was  really  a 
mortgage,  the  defendant  was  al- 
lowed to  have  foreclosure  under  a 
supplementary  cross  bill,  where  the 


256 


EQUITY  PRACTICE 


A  supplemental  bill  may  be  filed  as  well  after  deeree  as 
before  -'^  and  when  brought  after  the  decree  it  may  be 
either  in  aid  of  the  decree  ^"  or  to  bring  formal  parties 
before  the  court  ^^  or  to  impeach  the  decree.^-  In  any 
event,  leave  of  court  must  usually  be  obtained  before  filing 
a  supplemental  bill.^-"  When  the  bill  is  for  newly  dis- 
covered matter,  it  should  be  brought  as  soon  as  practica- 
ble after  the  matter  is  discovered,  for  if  the  party  pro- 
ceeds to  decree  after  discoveiy  of  the  new  matter  he  will 
not  usually  then  be  allowed  to  take  advantage  of  it.^* 


debt  had  matured  after  issue 
formed  under  bill  and  cross  bill. 
See  also  O'Donnell  v.  McCann  (X. 
J.  Eq.~l,  75  Atl.  999  (1910);  Baker 
V.  Whiting,  1  Story  218  (C.  C. 
1840);  Banque  v.  Brown,  24  Fed. 
106   (C.  C.  1885). 

29.  Mitford's  Eq.  PI.  (Trier's 
ed.)  160.  Such  bills,  though  often 
called  supplemental,  are  more  prop- 
erly classified  under  .Sees.  151  and 
155,  post,  pp.  295,  307. 

30.  Sec.   155,  post,  p.  307. 

31.  Mitford's  Eq.  PI.  (Tyler  s 
ed.\  161;  3  Atkins  217. 

32.  Sec.  151,  post,  p.  295. 

33.  Florida,  Eq.  Bule  39:  Winn 
V.  Albert,  2  Md.  Cli.  42  (1847); 
Pedrick  v.  White.  1  Met.  (Mass.)  76 
(1852);  Tappan  v.  Evans,  12  X.  H. 
330  (1841);  Buckingham  v.  Corn- 
ing. 29  X.  J.  E.  238  (1878) ;  Smith  v. 
WainwTight,  24  Vt.  97  (1S52):  Fed- 
eral Equity  Bule  34.  The  same  is 
true  of  an  amendment  filed  under 
a  rule  of  court  in  place  of  a  sup- 
plemental bni.  Maine,  Eq.  Bule 
21;  Mass.,  Eq.  Bule  25;  Pennsyl- 
vania. Eq.  Bule  49:  Bhode  Island, 
Eq.  Bule  10:  Vermont.  Eq.  Bule  9. 

That  leave  was  not  asked  is  not 
ground  for  demurrer,  although  the 
bill  may  be  dismissed  if  leave  was 
not    asked.      Barrido    v.    Trenton, 


etc.,  Co.,  13  X.  J.  Eq.  154  (1860). 
If  the  bill  asks  different  relief 
from  that  sought  when  leave  was 
asked,  the  bill  wUl  be  stricken 
from  the  files.  Stockton  v.  Ameri- 
can Tobacco  Co.,  53  X.  J.  Eq.  400 
(1895).  Befusal  to  strike  out 
(amended)  bill  filed  without  leave 
is  equivalent  to  leave  to  file  it. 
Ward  v.  Whitefield,  64  Miss.  754 
(18S7>.  The  objection  that  leave 
was  not  asked  is  waived  unless  it 
is  made  in  the  lower  court.  Wal- 
ker v.  Gilbert,  7  Sm.  &  M.  (Miss.) 
456  (1846).  Any  irregularity  in 
respect  to  asking  leave  is  of  course 
waived  by  consenting  to  the  filing, 
— Hyer  v.  Caro,  17  Fla.  332  (1879), 
or  by  demurring, — Allen  v.  Taylor, 
3  X.  J.  Eq.  435,  29  Am.  Dec.  721 
(1836  >.  Where  leave  has  been 
given  to  file  a  bill  containing  new 
facts,  omitted  facts  may  also  be 
stated  in  it.  Graves  v.  Xiles,  Harr. 
(Mich.)  332  (1842);  MeUor  v. 
Smither,  114  Fed.  116,  52  C.  C.  A. 
64  (1902).  The  court  on  a  proper 
showing  may  order  a  supplemental 
bill  stricken  although  it  was  filed 
with  leave.  Patterson  v.  Xorth- 
ern  Trust  Co.,  179  HI.  App.  501 
(1913V 

34.  Boynton    v.    Ingalls.    70    Me. 
461  (1880);  Ashuelot,  etc..  B.  Co.  v. 


BILLS  NOT  ORIGINAL 


257 


The  bill  may  ask  other  and  different  relief  from  the  orig- 
inal bill,  where  the  newly  discovered  matter  requires  it.^^^ 
A  supplemental  bill  stating  new  facts  cannot  give  force  to 
an  original  bill  which  did  not  make  out  a  cause  of  action 
in  equity.^  ^"^ 

To  entitle  the  plaintiff  to  file  a  supplemental  bill  and 
thereby  obtain  the  benefit  of  the  former  proceedings  it 
must  be  in  respect  to  the  same  title  in  the  same  person  as 
stated  in  the  original  bill.^^    But  if  the  interest  of  a  plain- 


Cheshire,  etc.,  R.  Co.,  59  N.  H.  409 
(1879);  Mitchell  v.  Big,  etc.,  Co., 
186  Fed.  552  (C.  C.  1911);  Jen- 
kins V.  Eldredge,  3  Story  299,  Fed. 
Cas.  7,267  (C.  C.  1846) ;  Dunham  v. 
Eaton,  etc.,  Co.,  1  Bond  492,  Fed. 
Cas.  4,150  (C.  C.  1861);  Henry  v. 
Travelers',  etc.,  Co.,  45  Fed.  299 
(C.  C.  1891).  An  administrator  is 
not  held  to  the  same  diligence  as 
would  be  the  party  himself  while 
living.  Owens  v.  Love,  9  Fla.  325 
(1861). 

34a.  Miller  v.  Cook,  135  111.  190, 
10  L.  E.  A.  292  (1890);  Delta,  etc., 
Co.  V.  Adams,  93  Miss.  340  (1909), 
amended  bill;  Hanby's  Admr.  v. 
Henritze's  Admr.,  85  Va.  177 
(1888). 

34b.  Florida.  Neubert  v.  Mass- 
man,  37  Fla.  91  (1896). 

Illinois.  Brownback  v.  Keister, 
220  111.  544  (1906). 

Maine.  Birmingham  v.  Lesan, 
77  Me.  494   (1885). 

Maryland.  Winn  v.  Albert,  2 
Md.  Ch.  42   (1847). 

Massachusetts.  Pinch  v.  An- 
thony, 10  Allen  (Mass.)  470  (1865). 

Mississippi.  Brown  v.  Bank,  31 
Miss.  454  (1856). 

New  Jersey.  Edgar  v.  Cleven- 
ger,  3  N.  J.  Eq.  258  (1835). 

Pennsylvania.  Kentucky  Bank 
V.  Schuylkill  Bank,  1  Pars.  Eq.  Cas. 
(Penna.)    180. 

Whitehouse  E.  P.  Vol.  1—17 


United  States.  Mellor  v.  Smith- 
er,  114  Fed.  116,  52  C.  C.  A.  64 
(1902).  But  if  the  supplemental 
bill  can  be  treated  as  an  original 
bill  in  the  nature  of  a  supplemen- 
tal bill,  it  will  be  allowed.  Hughes 
V.  Carne,  135  111.  519   (1891). 

In  West  Virginia,  although  it  ap- 
pears that  a  supplemental  bill  to 
set  forth  facts  newly  arising  is 
quite  proper, — Western,  etc.,  Co.  v. 
Virginia,  etc.,  Co.,  10  W.  Va.  250 
(1877), — yet'an  amendment  is  the 
preferable  course.  Crumlish  v. 
Shenandoah,  etc.,  R.  Co.,  28  W.  Va. 
623   (1886). 

35.  Miller  v.  Cook,  135  111.  190 
(1890).  Thus  if  a  person  should 
file  an  original  bill  as  heir  at  law 
of  the  mortgagor  to  redeem  and 
it  should  appear  at  the  hearing 
that  he  is  not  the  heir  at  law,  and 
he  afterwards  purchases  the  title 
of  the  true  heir  at  law,  he  cannot 
file  a  supplemental  bill  to  have  the 
benefit  of  the  former  proceedings, 
since  he  claims  by  different  title 
from  that  inserted  in  the  bill.  The 
most  that  he  can  do  is  to  file  a  bill 
in  the  nature  of  a  supplemental 
bill.  Bannon  v.  Comegys,  69  Md. 
411  (1888).  The  same  is  true  of 
amendments.  Evans  v.  Bagshaw, 
L.  R.  8  Eq.  469  (1869). 


258  EQUITY  PRACTICE 

tiff  suing  in  aider  droit  entirely  determines  by  death  or 
otherwise  and  some  other  person  thereupon  becomes 
entitled  to  the  same  projjerty  under  the  same  title,  as  in 
the  case  of  new  trustees  under  a  commission  of  bank- 
ruptcy upon  the  death  or  removal  of  former  trustees,  or 
in  the  case  of  an  executor  or  administrator,  upon  the 
determination  of  an  administration  during  minority  or 
pendente  lite,  the  suit  may  be  added  to  and  continued  by 
a  supplemental  bill,  for  in  these  cases  there  is  no  change 
of  interest  which  can  affect  the  cpiestions  between  the  par- 
ties but  only  a  change  of  the  person  in  whose  name  the 
suit  must  be  prosecuted. ^"^ 

Likewise  if  the  interest  of  a  defendant  has  become 
vested  in  another  but  not  determined  by  any  event  subse- 
quent to  the  institution  of  a  suit,  as  in  the  case  of  aliena- 
tion by  deed  or  devise  or  by  bankruptcy,  the  defect  in 
the  suit  may  be  supplied  by  supplemental  bill  whether  the 
suit  has  become  defective  merely  or  abated  as  well.    For 

36.  Winn    v.    Albert,   2   Md.    Ch.  Mitford's  Eq.  PI.   (Tyler's  ed.),  p. 

42  (1847);  Collateral;  etc.,  Bank  v.  163. 

Fowler,  42  Md.  393  (187.5).  If  Where  a  plaintiff  sues  in  his  owu 
there  has  been  no  decree  the  suit  right  and  is  deprived  of  or  trans- 
may  proceed  after  the  supplemen-  fers  his  whole  interest  after  suit 
tal  bill  has  been  filed,  in  the  same  is  begun,  it  seems  that  the  new 
manner  as  if  the  original  plaintiff  plaintiff  must  bring  a  bill  in  the 
had  continued  the  suit,  except  that  nature  of  a  supplemental  bill  rather 
the  defendant  must  answer  the  than  a  supplemental  bill,  although 
supplemental  bill  and  either  admit  in  some  of  the  cases  it  is  called  a 
or  put  in  issue  the  title  of  the  new  supplemental  bill,  and  this  is  ap- 
plaintiff.  But  if  a  decree  has  been  proved  by  Judge  Story  in  his  Eq. 
obtained  before  the  event  on  which  PI.  (10th  ed.).  Sec.  340,  n.  2.  Ma- 
such  supplemental  bill  becomes  son  v.  York,  etc.,  R.  Co.,  52  Me.  82 
necessary,  though  the  decree  be  (1861);  Jacques  v.  Hall,  3  Gray 
only  a  decree  nisi,  there  must  be  a  (Mass.)  194  (1855);  Chick  v.  An- 
decree  on  the  supplemental  bill  de-  derson,  2  Lea  (Tenn.)  194  (1879) ; 
daring  that  the  plaintiff  in  that  List  v.  Pumphrey,  3  W.  Va.  672 
bill  is  entitled  to  stand  in  the  (1869);  New  York,  etc.,  Co.  v. 
place  of  the  plaintiff  in  the  original  Western,  etc.,  Co.,  89  Fed.  24  (C. 
bill,  and  to  have  the  benefit  of  the  C.  1898),  bill  by  purchaser  in  aid 
proceedings  upon  it,  and  to  prose-  of  decree;  Hazelton,  etc.,  Co.  v. 
cute  the  decree  and  take  the  steps  Citizens',  etc.,  Co.,  72  Fed.  325  (C. 
necessary    to    render    it    effectual.  C.  1896). 


BILLS  NOT  ORIGINAL 


259 


in  these  cases  the  new  party  comes  before  the  court 
exactly  in  the  same  condition  as  the  former,  is  bound  by 
his  acts  and  may  be  subject  to  costs  for  the  bringing  of  the 
suit.^"^ 

Finally,  a  supplemental  bill  must  be  consistent  with  the 
original  bill  ^^  and  material  to  the  matter  in  controversy 
therein.^''  It  cannot  introduce  an  entirely  new  case,^*^ 
although  entirely  different  relief  may  be  obtained  by  it.^^ 
It  will  never  lie  to  introduce  a  new  cause  of  action  which 
has  arisen  since  the  filing  of  the  original  bill,^^  nor  to 
obtain  the  allowance  of  expenses  in  the  original  suit,^^ 


37.  Caldwell  v.  First  Nat.  Bank, 
89  111.  App.  448  (1900).  If  the 
suit  has  become  abated  as  well  as 
defective,  the  bill  may  be  termed 
a  bill  of  revivor  and  supplement. 
See  Sec.  140,  post,  p.'  269. 

A  distinction  should  be  mAde  be- 
tween voluntary  and  involuntary 
alienations;  in  the  latter  case  the 
assignee  must  be  made  a  party, 
while  in  the  former  he  may  or  may 
not  at  the  election  of  the  plaintiff. 
Sedgwick  v.  Cleveland,  7  Paige 
(N.  Y.)   287   (1838). 

38.  Alabama.  Planters',  etc., 
Ins.  Co.  V.  Selma  Bank,  63  Ala.  585 
(1879);  Vaughan  v.  Vaughan,  30 
Ala.  329   (1857). 

Mississippi.  Dickinson  v.  Poin- 
dexter,  Freem.   (Miss.)   721   (1840). 

New  Jersey.  Williams  v.  Wi- 
nans,  20  N.  J.  Eq.  392  (1869),  22 
N.  J.  Eq.  573  (1872). 

Tennessee.  Smith  v.  St.  Louis, 
etc.,  Co.,  3  Tenn.  Ch.  151  (1876). 

Vermont.  Smythe  v.  Central  Vt. 
E.  Co.,  90  Atl.  901  (1914);  Lynch 's 
Admr.  v.  Murray,  81  Vt.  97  (1908), 
amendment. 

Virginia.  Smith  v.  Pyrites  Co., 
101  Va.  301  (1903);  McComb  v. 
Lobdell,  32  Gratt.  (Va.)  185  (1879). 


West  Virginia.  Straughan  v. 
Hallwood,  30  W.  Va.  274  (1870). 

United  States.  Minnesota,  etc., 
Co.  V.  St.  Paul,  etc.,  Co.,  6  Wall. 
742,  18  L.  ed.  856  (1867);  Maynard 
V.  Green,  30  Fed.  643  (C.  C.  1887). 

In  some  of  these  cases  it  is 
pointed  out  that  a  bill  in  the  na- 
ture of  a  supplemental  bill  does  not 
need  to  be  consistent  with  the 
original  bill,  being  itself  a  bill  in 
the  nature  of  an  original  bill. 

39.  Martin  v.  Sexton,  112  111. 
App.  199  (1904);  Barriclo  v.  Tren- 
ton, etc.,  Co.,  13  N.  J.  Eq.  154 
(1860) ;  Atwood  v.  Shenandoah  Val- 
ley, etc.,  Co.,  85  Va.  966  (1889); 
Lyster  v.  Stickney,  12  Fed.  609  (C. 
C.  1882);  Jenkins  v.  Eldredge,  3 
Story  299,  Fed.  Cas.  7,267  (C.  C. 
1845). 

40.  See  cases  in  note  38,  ante. 

41.  Miller  v.  Cook,  135  111.  190, 
10  L.  E.  A.  292  (1890);  Delta,  etc., 
Co.  V.  Adams,  93  Miss.  340  (1909), 
amended  bill;  Hanby's  Admr.  v. 
Henritze's  Admr.,  85  Va.  177 
(1888). 

42.  See  cases  in  note  38,  ante. 

43.  Boynton  v.  Ingalls,  70  Me. 
461   (1880). 


260  EQUITY  PRACTICE 

and  formerly  it  could  not  be  brought  wliere  an  amendment 
would  serve  the  same  purpose.^^ 

§  134.  — Frame.  A  supplemental  bill  must  state  the 
original  bill  and  the  proceedings  thereon,  and  if  the  sup- 
plemental bill  is  occasioned  by  an  event  subsequent  to  the 
original  bill  it  must  state  that  event  and  the  consequent 
alteration  with  respect  to  the  parties,"*^  It  is  not  the  prac- 
tice to  reiterate  specitically  in  a  supplemental  bill  all  the 
charges  of  the  original  bill,  but  to  set  them  out  by  way  of 
reference  and  charge  the  new  and  additional  facts  by  way 
of  supplement. ^*^  It  is  only  necessary  to  state  so  much  of 
the  original  case  as  shows  there  was  an  equity  in  it.*" 
Usually  the  cause  must  be  heard  upon  the  supplemental 
bill  at  the  same  time  that  it  is  heard  upon  the  original 
bill,  if  it  has  not  before  been  heard,  but  if  it  has,  it  must 
be  further  heard  on  the  supplemental  matters."*^ 

Where  a  supplemental  bill  is  filed  for  the  mere  purpose 
of  bringing  a  party  before  the  court  upon  the  original 

44.  Burke  v.  Smith,   15  111.   15S  mental  bill.     See  the  above  cases 

(1853);  Walker  v.  Gilbert,  15  Miss.  in  this  note,  cases  in  note  34,  ante, 

456    (1846) ;    Commercial,   etc.,   Co.  p.  256,  and  Sec.  135,  post,  p.  261. 

V.  Xew  Jersey,  etc.,  Co.,  61  X.  J.  A  supplemental  bill  is  never  nec- 

Eq.  446   (1901),  reversed  on  other  essary  where   the   original  bill  ac- 

grounds,  64  X.  J.  Eq.  338   (1902);  complished  a  just  result.     Burleigh 

Barriclo  v.  Trenton,  etc.,  Co.,  13  X.  v.  White,  70  Me.  130  (1879). 

J.  Eq.  154  (1860);  Henry  V.  Trav-  45.  Mitford's    Eq.    PI.     (Tyler's 

elers',  etc.,  Co.,  45  Fed.  299  (C.  C.  ed.),  p.  172. 

1891) :  Swatzel  v.  Arnold,  1  Woolw.  46.  Alabama.     Eq.  Eule  102. 

383,  Fed.  Cas.  13,682  (C.  C.  1869).  Florida.     Eq.  Eule  40. 

It    would    seem,    however,    that  Michigan.    Eq.  Eule  26. 

where  under  the  modern  rules  men-  New     Hampshire.        Chase       v. 

tioned    in    Sec.    132.    ante,    p.    253,  Searles,  45  X.  H.  511  (1S64). 

amendments   are   allowed  in  place  New  Jersey.     Edgar  v.   Cleven- 

of  supplementary  bills,  there  is  no  ger.  3  X.  J.  Eq.  258  (1835). 

reason    why   a    supplementary   bill  United     States.       Xevada,     etc., 

may  not  still  be  brought.  Syndicate  v.  Xational,  etc.,  Co.,  86 

Objections    to    the    bill    on    the  Fed.  486  (C.  C.  1898) ;  Eq.  Eule  35. 

ground  that  it  was  not  seasonably  47.  Vigers  v.  Audley,  9  Sim.  72, 

filed,  or  that  an  amendment  would  77. 

have  lain,  may  be  taken  by  demur-  48.  Mitford's    Eq.    PI.     (Tyler's 

rer,  plea,  or  answer  to  the  supple-  ed.),  p.  172. 


BILLS  NOT  ORIGINAL  261 

facts  appearing  upon  the  record,  such  party  is  the  only 
one  whom  it  is  necessary  to  make  a  defendant  in  such 
bill.^^  But  where  new  matter  is  brought  before  the 
court,^°  or  where  a  person  acquired  the  interest  of  a  party 
in  the  suit  pendente  lite/'^  all  the  parties  to  the  original 
bill  should  be  made  parties  to  the  supplemental  bill. 

§  135.  — Procedure.  Objections  to  a  supplemental  bill 
such  as  that  it  is  filed  when  an  amendment  is  allow- 
able ^^  or  unseasonably,^^  inconsistency,^^  a  new  and  dis- 
tinct cause,-^^  that  a  distinct  title  is  set  up,^^  or  that  there 
are  no  sufficient  grounds  for  supplemental  bill,^^  may  be 
taken  by  demurrer  when  apparent  by  the  bill,  otherwise 
by  plea,  or  an  answer  may  serve  the  purpose  of  either,  but 
the  objection  comes  too  late  in  the  hearing.^^  The  plain- 
tiff may  file  his  replication  to  such  answer,  but  it  is  not 
required  when  there  has  already  been  a  replication  to  the 
original  bill,  and  where  there  has  not,  a  general  replica- 
tion will  do  for  both  bills.^^  Evidence  properly  taken  on 
original  bill  may  be  used  on  both.^^ 

49.  Calwell  v.  Boyer,  8  G.  &  J.  53.  See  cases  in  note  34,  ante,  p. 
(Md.)   136   (1836);   Farmers'  Loan       256. 

&   Trust   Co.   V.   Seymour,   9   Paige  54.  See  cases  in  note  38,  ante,  p. 

(N.   Y.)    538    (1842);    Ensworth   v.  259. 

Lambert,  4  Johns.  Ch.   (N.  Y.)  605  55.  See  cases  in  note  38,  ante,  p. 

(1820).     In   Alabama   it   has   been  259. 

said  that  the  defendants  to  the  orig-  55.  gee  cases  in  note  35,  ante,  p. 

inal  bill  should  in  general  be  parties  £57 

to  the   supplemental  bill.     Walker  57,  Lawrence  v.  Bolton,  3  Paige 

V.  Hallett,  1  Ala.  379  (1840).  ,-^    Y  )  294   (1832) 

50.  Farmers'  Loan  &  Trust  Co.  ^^  ^rump  v.  Perkins,  18  Fla. 
!;o!!r^y'   ^   ^ri^^    ^^-  ^-l  ^^^  353    (1881);   Wilson   v.  Wilson,   93 


Va.    546    (1896).      It    would    seem 
that   where   an   amendment   serves 


(1842);  Blunt  v.  Hay,  4  Sandf.  Ch 

(N.    Y.)     362     (1846).    Except     a 

merely  formal  party  to  the  original 

bill,  whose  rights   or  interests  are      *^^  purpose  of  a  supplemental  bill, 

not    affected   by   the    new   matter.      ^^^  defects  therein  above  enumer- 

Allen   V.   Taylor,   3   N.   J.   Eq.   435      ^^^^  might  be  taken  advantage  of 

(1836).  in  the  same  way. 

51.  Borst  V.  Boyd,  3  Sandf.  Ch.  59,  Catton  v.  Earl  of  Carlisle,  5 
(N.  Y.)   502   (1846).                                   Mad.  427. 

52.  See  cases  in  note  44,  ante,  p.  60.  Giles  v.  Giles,  1  Keen  685. 
260. 


262 


EQUITY  PRACTICE 


§  136.  Bills  in  the  nature  of  supplemental  bills.  A  sup- 
plemental bill  properly  lies  only  when  either  the  same  par- 
ties or  the  same  interests  remain  before  the  court.  AVhen 
it  is  desired  to  bring  in  new  parties  with  new  interests 
arising  from  events  since  the  institution  of  the  suit,  or 
where  relief  different  in  kind  or  upon  a  different  principle 
is  required,  a  bill  in  the  nature  of  a  supplemental  bill  is 
required.^ ^  So  where  a  plaintiff  suing  in  his  own  right 
entirely  determines  his  interests  in  the  suit  by  voluntary 
assignment,^-  or  by  operation  of  law  as  in  case  of  bank- 
ruptcy, his  entire  interest  is  transfeiTed  to  his  trustees 


61.  Alabama.  Bowie  v.  Minter, 
2  Ala.  406,  412   (1841),  semble. 

Illinois.  McDonald  v.  Asay,  139 
111.  123,  affirming  37  111.  App.  469 
(1S90-1891);  Heffron  v.  Knicker- 
bocker, 57  111.  App.  339  (1S95). 

Maryland.  Brooks  v.  Brooke,  12 
G.  &  J.  (Md.)  306,  38  Am.  Dec.  310 
(1842). 

New  Jersey.  Fulton  v.  Greacen, 
44  N.  J.  Eq.  443  (1SS8). 

United  States.  Great  Western 
Tel.  Co.  V.  Purdy,  162  U.  S.  329, 
40  L.  ed.  986  (1896),  affirming  83 
la.  430  (1891);  Haarman.  etc.,  Co. 
V.  Lenders,  135  Fed.  120  (1904). 
See  cases  in  notes,  36,  37,  ante, 
pp.  258,  259. 

The  distinction  between  supple- 
mental bills  and  bills  in  the  nature 
of  supplemental  bills  is  not  purely 
technical,  but  is  a  real  difference, 
since  in  the  supplemental  bill 
proper,  the  suit  proceeds  in  the 
same  manner  as  if  the  original 
plaintiff  had  continued  it,  if  there 
has  been  no  decree,  but  in  the  case 
of  a  bill  in  the  nature  of  a  supple- 
mental bill  the  whole  case  is  open 
and  a  new  defence  may  be  made. 
Evidence  taken  under  a  bill  in  the 
nature  of  a  supplemental  bill  can- 
not be  used  in  the  same  manner  as 


if  taken  on  the  original  bill, 
whereas  on  supplemental  bill  it  can. 
So  the  new  plaintiff  is  not  en- 
titled to  the  benefit  of  the  original 
decree,  but  seeks  a  new  one  like  it, 
while  in  a  supplemental  bill  proper 
the  contrary  is  the  case.  Cheever 
V.  Ellis,  144  Mich.  477,  11  L.  -K.  A. 
(N.  S.)  296  (1906),  amended  bill; 
Lynch 's  Admr.  v.  Murray,  81  Vt. 
97  (1908),  amended  bill;  Vigneron 
V.  Auto,  etc.,  Co.,  171  Fed.  580 
(1909).  A  bill  in  the  nature  of  a 
supplemental  bill  may  be  dismissed 
where  the  remedy  at  law  is  ade- 
quate. W.  E.  Lynn  Shoe  Co.  v. 
Lunn,  etc.,  Co.,  108  Me.  198  (1911). 

62.  Massachusetts.  Jacques  v. 
Hall,  3  Gray  (Mass.)  149  (1855), 
called  a  supplemental  bill. 

Tennessee.  Chick  v.  Anderson,  2 
Lea  (Tenn.)  194  (1879);  Trabue  v. 
Bankhead,  2  Tenn.  Ch.  412   (1875). 

Virginia.  Smith  v.  Pyrites  Co., 
101   Va.   301    (1903). 

West  Virginia.  List  v.  Pum- 
phrey.  3  W.  Va.  672   (1869). 

United  States.  Baker  v.  Baker, 
89  Fed.  673  (C.  C.  1898);  Hazel- 
ton,  etc.,  Co.  V.  Citizens',  etc.,  Co., 
72  Fed  325  (C.  C.  1896);  Ross  v. 
City  of  Fort  Wayne,  58  Fed.  404 
(C."  C.  1893). 


BILLS  NOT  ORIGINAL  263 

subsequent  to  filing  bill;^^  likewise  where  the  interest 
of  a  defendant  is  determined  and  the  same  interest  be- 
comes vested  in  another  by  a  title  not  derived  from  the 
former  party,  as  in  the  case  of  a  determination  of  an  estate 
tail  and  the  vesting  of  a  subsequent  remainder  in  pos- 
session.®"* 

A  bill  in  the  nature  of  a  supplemental  bill  must  state 
the  original  bill,  the  proceedings  upon  it,  the  event  which 
has  determined  the  interest  of  the  party  by  or  against 
whom  the  former  bill  was  exhibited,  and  the  manner  in 
which  the  property  has  become  vested  in  the  new  party, 
and  show  the  ground  upon  which  the  court  ought  to  grant 
the  benefit  of  the  former  suit  to  or  against  such  party, 
and  pray  the  decree  of  the  court  on  the  case  made  to  the 
new  bill.*^^ 

§  137.  Bills  of  revivor.  Besides  the  supplanting  of  bills 
of  revivor  by  amendment  under  the  general  provisions  of 
the  statutes  or  chancery  rules  of  many  of  the  states  ®®  the 
law  and  practice  respecting  this  class  of  bills,  as  they  for- 
merly existed,  have  become  less  important  by  reason  of 
rules  or  statutes  providing  specially  that  where  a  party 
to  a  suit  dies  and  his  death  is  suggested  on  the  record, 
his  executor,  administrator,  or  heirs  at  law  may  appear 
or  be  summoned  without  a  bill  of  revivor,  provided  that 
the  cause  be  one  that  survives.*^^    A  new  trustee  appointed 


63.  Mason  v.  York,  etc.,  K.  Co.,  New  Jersey.  Comp.  Stat.  "Abate- 
52  Me.  82  (1861);  Northman  v.  ment,"  Sees.  4-9;  Eq.  Eules  210, 
Liverpool,    etc.,    Co.,    1    Tenn.    Ch.  210  (a),  210  (b), 

312    (1873).  Pennsylvania.    Eq.  Rule  53, 

64.  Mitf ord  's  Eq.  PI.  (Tyler 's  Rhode  Island.  G.  L.  Ch.  289,  Sec. 
ed.)    169.  30;  Eq.  Eule  10. 

65.  Mitf  ord 's    Eq.    PI.     (Tyler's  Vermont.     Eq.  Rule  11. 

cd.)    195.  United  States.     Eq.  Rules  19,  45. 

66.  Alabama.     Eq.  Rules  45,  102,  67.  Alabama.    Eq.  Rule  101. 
103,  104.  Delaware.     Eq.  Rules  51-53. 

Delaware.    Eq.  Rules  51-53.  Florida.     Eq.  Rules  37,  38. 

Maine.     Eq.  Rule  21.  Maine.     R.  S.  Ch.  84,  Sec.  51. 

Massachusetts.    Eq.  Rule  25.  Maryland.     Code,   Art.   16,   Sees. 

New  Hampshire,    Eq.  Rule  102.  1-11. 


264 


EQUITY  PRACTICE 


by  the  court  to  succeed  another  under  the  provision  of  a 
statute  therefore  has  a  right  to  be  admitted  on  his  own 
petition  merely,  as  a  party  to  a  suit  begun  by  his  prede- 
cessor.*^^ 

In  general  chancery  practice,  however,  unmodified  by 
statute,  a  bill  of  revivor  is  the  proper  mode  of  keeping 
alive  and  continuing  a  suit  which  has  become  abated  by 
the  death  of  the  plaintiff  or  defendant,  where  the  interest 
of  such  deceased  party  passed  by  law  to  his  legal  repre- 


Massachusetts.    Eq.  Rule  23. 

Michigan.  Comp.  Laws,  1897, 
Sees.  469-483;  How.  Ann.  St.  (2d 
ed.),    §§  11,987-12,001. 

New  Hampsliire.     Eq.  Rule  102. 

New  Jersey.  Comp.  Stat. ' '  Abate- 
ment," Sees.  4-9;  Eq.  Rules  210, 
210  (a),  210  (b). 

Pennsylvania.  P.  &  L.  Dig. 
"Chancery,"  Sees.  152  to  158;  Eq. 
Rule  53. 

Rhode  Island.  G.  L.  Ch.  289, 
Sec.  11. 

Tennessee.  Code,  Sees.  6,237- 
6,240,  revivor  by  scire  faci<Ts. 

Vermont.  P.  S.,  Sees.  1,269- 
1,279. 

Virginia.  Code,  Sec.  3,313,  no  re- 
vivor necessary  when  more  than 
thirty  parties. 

West  Virginia.  Code,  Sec.  4,840, 
same  as  Virginia. 

United  States.     Eq.  Rule  45. 

Even  where  the  rule  or  statute 
does  not  expressly  so  state,  the 
methods  provided  by  them  are  gen- 
erally held  to  be  merely  additional 
to  the  right  to  bring  a  bill  of  re- 
vivor, and  the  latter  procedure  is 
still  available.  Hall  v.  Hall,  1 
Bland  (Md.)  130  (1826);  Benson 
V.  Wolverton,  16  N.  J.  Eq.  110 
(1863);  Boek  v.  Bock,  24  W.  Va. 
586  (1884);  Reid  v.  Stuart,  20  W. 
Va.  382  (1882);  Foster  v.  Burem, 
1  Heisk.   (Tenn.)   783   (1870);   con- 


tra, Keep  v.  Crawford,  92  111.  App. 
587  (1900);  Chancery  Rule  53  of 
Pennsylvania. 

In  the  Federal  courts  it  was  for- 
merly held  that  one  entitled  to  re- 
vive, must  do  so  by  bill  of  revivor, 
not  by  motion.  Dillard's  Admr.  v. 
Central,  etc.,  Co.,  125  Fed.  157  (C. 
C.  1903);  former  Federal  Equity 
Rule  56.  But  the  new  rule  45  al- 
lows revivor  on  motion. 

In  Massachusetts  the  statute  is 
interpreted  to  permit  even  of  the 
admission  of  a  devisee,  in  the  dis- 
cretion of  the  court,  by  amend- 
ment. Busiere  v.  Reilley,  189  Mass. 
518  (1905);  see  Parker  v.  Simpson, 
180  Mass.  334  (1902). 

In  Hubbard  v.  Johnson,  77  Me. 
139  (1885),  the  heir  and  devisee 
were  brought  in  by  supplemental 
bill,  although  no  service  had  been 
made  upon  the  testator  prior  to  his 
decease.  The  court  seems  to  admit 
that  a  bill  of  revivor  (or  a  bill  in 
the  nature  -of  revivor)  was  proper, 
but  does  not  intimate  which  would 
be  preferable.  This  was  subse- 
quent to  the  statute  admitting  the 
legal  representative  as  a  party,  but 
prior  to  the  chancery  rule  permit- 
ting amendments  to  have  the  force 
of  bills  of  revivor. 

68.  Murray  v.  Dehon,  102  Mass. 
11   (1869). 


BILLS  NOT  ORIGINAL 


265 


sentative  so  tliat  the  title  cannot  be  disputed  in  a  court 
of  chancery,  and  the  only  question  is  in  whom  the  title 
is  vested.'^''  If  the  original  suit  concerned  the  personal 
estate  of  the  deceased,  then  the  bill  of  revivor  should 
be  brought  by  the  executor  or  administrator,  of  real  estate 
then  by  the  heirs  at  law.^** 

When    the   plaintiff   dies,    his   proper   representative 
bill  against  the  defendant,  or  if  the 


should  bring  the 


69.  Glenn  v.  Smith,  17  Md.  260 
(1861);  Glenn  v.  Clapp,  11  G.  &  J. 
(Md.)  1  (1839);  Putnam  v.  Put- 
nam, 4  Pick.  (Mass.)  139  (1826); 
Boynton  v.  Boynton,  21  N.  H.  246 
(1850);  Manchester  v.  Mathewsou, 
2  E.  I.  416   (1853). 

A  bill  of  revivor  being  a  mere 
continuation  of  the  original  suit,  it 
will  lie  in  a  Federal  court,  though 
the  original  action  was  brought  on 
the  ground  of  diversity  of  citizen- 
ship, and  plaintiff  and  defendant 
to  bill  of  revivor  are  of  same  state. 
Clarke  v.  Mathewson,  12  Pet.  171 
(1838). 

It  seems  that  no  leave  of  court  is 
needed  for  bringing  a  bill  of  re- 
vivor. Pendleton  v.  Fay,  2  Paige 
(N.  Y.)  204  (1832).  Certainly  this 
is  true  of  a  bill  in  the  nature  of 
revivor.  Webster  v.  Hitchcock,  11 
Mich.  56  (1862).  But  in  Virginia 
and  West  Virginia  there  are  statu- 
tory provisions  that  although 
plaintiff  may  of  right  notwith- 
standing appearance  file  in  vaca- 
tion a  supplemental  bill  or  bill  of 
revivor,  the  court  may  dismiss  it, 
on  motion  of  the  defendant. 

No  bill  of  revivor  may  be 
brought  simply  to  recover  costs,  un- 
less they  were  taxed  and  reported 
before  the  suit  abated,  or  unless 
the  costs  are  to  be  paid  from  an 
estate.  Morgan  v.  Scudamore,  3 
Ves.     195.       Contra,    Alabama    Eq. 


Eule  105.  And  see  Johnson  v. 
Peck,  2  Ves.  Sr.  465;  Eidgeley  v. 
Bond,  18  Md.  433  (1862),  bill  in 
nature  of  revivor;  Owing 's  Case, 
1  Bland  (Md.)   370,  409   (1828). 

A  bill  of  revivor  cannot  be 
brought  after  the  object  of  the 
original  litigation  is  entirely  ob- 
tained; e.  g.,  after  answer  to  a  bill 
for  discovery.  Horsbury  v.  Baker, 
1  Pet.  232  (1828).  Or  after  the 
first  suit  has  been  finally  dismissed 
rather  than  abated.  Vaughn  v. 
Vaughn,  60  So.  872   (Ala.  1913). 

70.  Hawkins  v.  Chapman,  36  Md. 
83  (1872);  Putnam  v.  Putnam,  4 
Pick.  (Mass.)  139  (1826);  Miles  v. 
Miles,  32  N.  H.  147  (1855).  Where 
both  real  estate  and  personal  prop- 
erty are  involved,  both  heirs  and 
personal  representatives  should  be 
brought  before  the  court.  Owing 's 
Case,  1  Bland  (Md.)  370,  409 
(1828);  Lanning  v.  Cole,  6  N.  J. 
Eq.  102   (1847). 

If  a  bill  was  originally  filed  by 
a  person  in  his  own  capacity,  his 
own  personal  representative  or  heir 
is  the  proper  person  to  bring  re- 
vivor after  the  plaintiff's  death; 
but  if  the  bill  was  filed  in  a  repre- 
sentative capacity,  the  representa- 
tive of  the  first  deceased  person, 
and  not  of  the  original  plaintiff 
brings  revivor.  Glenn  v.  Smith, 
17  Md.  260  (1801);  Newcomb  v. 
Murray,  77  Fed.  492   (1896). 


266 


EQUITY  PRACTICE 


defendant  dies  the  plaintiff  may  bring  the  bill  against 
the  defendant's  proper  representatives.  On  the  other 
hand,  if  the  plaintiff  dies  and  his  representatives  neglect 
to  revive  the  suit,  the  defendant  is  entitled  to  bring  a 
bill  for  that  purpose  against  the  plaintiff's  representa- 
tives, in  one  instance,  viz., — after  a  decree  has  been  ren- 
dered fixing  the  rights  of  the  parties. — since  he  is  entitled 
to  the  benefit  of  the  decree  and  the  right  to  prosecute 
it  if  he  desires.'^  Such  a  bill  by  a  defendant  after  decree 
merely  substantiates  the  suit  and  brings  before  the  court 
the  parties  necessaiy  to  the  execution  of  the  decree;  it 
is  not  to  litigate  again  claims  decided  under  the  original 
pleadings. '- 

Whenever  there  is  an  original  bill  and  a  cross  bill 
thereto,  if  an  abatement  takes  place,  there  must  generally 


71.  Hawkins  v.  Chapman,  36  Md. 
83  (1S72):  Benson  v.  Wolverton, 
16  X.  J.  Eq.  110  (1S63),  attempt 
to  revive  bv  defendant,  on  motion, 
under  statute,  refused  bv  the  court ; 
Peer  v.  Cookerow,  13  X.  J.  Eq.  136 
(1S60),  revivor  allowed  against 
plaintiff's  devisee,  after  decree,  in 
order  that  defendant  might  appeal; 
Anderson  v.  MeXeal,  4  Lea  (Tenn.) 
303  (ISSO):  Reid  v.  Stuart,  20  W. 
Ta.  3S2  (1SS2\  allowed  against 
plaintiff  "s  representatives  sifter  an 
order  of  reference  upon  which  a 
balance  might  be  found  against 
the  plaintiff.  In  the  last  case,  the 
defendant  called  his  proceeding  a 
petition  under  the  statute,  but  the 
court  allowed  it  as  a  bill  of  re- 
vivor. 

By  the  procedure  under  the  rules 
and  statutes  cited  in  note  67,  ante, 
p.  263,  the  defendant  can  usuallv 
revive  the  suit  in  any  case.  This 
is  expressly  provided  in  Alabama 
by  Code,  Sec.  3,120.  In  the  same 
state  revivor  may  be  had  after  de- 
cree by  any  person  not  a  party  but 


interested  in  the  decree.  Griffin  v. 
Spence,  69  Ala.  .393  (1881),  semble. 

72.  Fretz  v.  Stover,  22  WalL  198 
(1874);  Xewcomb"  v.  Murray,  77 
Fed.  492  (C.  C.  1896);  Sharon  v. 
Terry,  36  Fed.  337  (C.  C.  1888). 
But  in  Prouty  v.  Moss,  111  111.  App. 
536  (1903),  the  court  held  that  it 
would  deny  the  relief  of  a  revivor, 
if  the  merits  of  the  original  cause 
were  properly  adjudicated.  Here 
the  original  bill  had  been  dismissed 
on  motion  by  the  original  plain- 
tiff's counsel  after  plaintiff's  death. 

It  is  difficult  to  see  how  a  de- 
fendant could  secure  the  revival 
of  an  action  by  amendment  of  the 
original  plaintiff 's  bill,  under  the 
statutes  mentioned  in  note  21,  ante, 
p.  253.  It  would  seem,  however, 
that  it  might  be  accomplished  by 
petition,  suggesting  the  abatement, 
and  asking  that  the  representa- 
tives of  the  deceased  person  be 
summoned  to  appear  and  show 
cause  why  the  defendant  should  not 
have  the  benefit  of  the  decree. 


BILLS  NOT  ORIGINAL  267 

be  a  bill  of  revivor  in  each  case,  unless  an  account  is 
sought  and  decree  rendered  therefor,  when  one  bill  will 
revive  both  causes/^ 

§  138.  — Frame.  A  bill  of  revivor  must  state  the  orig- 
inal bill;  who  were  the  plaintiffs  or  defendants  to  it;  what 
its  prayer  and  object  was;  the  proceedings  thereon,  and 
the  abatement.  It  should  also  show  a  title  to  revive  and 
how  the  plaintiff  became  entitled,  and  should  charge 
that  the  cause  ought  to  be  revived,  and  it  must  pray 
that  it  be  revived  accordingly,  and  that  the  plaintiff 
may  have  the  benefit  of  the  proceedings  in  the  original 
bill.^4 

The  defendants  must  answer  a  bill  of  revivor  and 
submit  that  the  suit  be  revived,  or  show  cause  to  the 
contrary.  Any  grounds  for  objection  to  the  maintenance 
of  the  bill  may  be  taken  advantage  of  as  in  supplemental 
bills  by  demurrer  when  apparent  on  the  face,  otherwise 
by  plea  or  answer.''^^ 

The  chief  concern  of  the  pleader  in  matters  of  revivor, 
whether  he  is  proceeding  by  bill  of  revivor,  or  by  amend- 
ment in  place  thereof,  or  under  the  statutes  providing 
for  admission  of  the  legal  representative  as  a  party  to 
the  suit,  is  to  know  in  what  cases  a  suit  does  or  does  not 
abate.  For  this  purpose,  reference  may  be  had  to  the 
subject  of  abatement,  considered  previously.'^ "^ 

73.  Story's  Eq.  PI,  (10th  ed.)  in  Massachusetts,  executors  of  a 
Sec.  363.  deceased      defendant      might      be 

74.  Equity  Eules  40  of  Florida,  brought  in  by  bill  of  revivor  though 
46  of  Michigan.  Douglas  v.  Sher-  no  service  had  been  had  on  the 
man,  2  Paige  (N,  Y.)  358  (1831).  testator.    Heard  v.  March,  12  Gush. 

Substituted  service  may  be  nee-  580   (1853). 
essary    against    a    defendant    who  The  bill  may  have  to  pray  that 

cannot  personally  be  served.     Fos-  the  defendant  may  answer  the  bill 

ter  V.  Burem,  1  Heisk.  (Tenn.)  783  of  revivor,  as  for  instance  where  an 

(1870).     But   where   the   bill  must  admission  of  assets  or  an  account 

be  treated  as  a  bill  in  the  nature  is  required  from  the  representative 

of  revivor,  there  must  be  personal  of  the  deceased  party, 
service   on   the   defendants   therein  75.  Pendleton    v.    Fay,    3    Paige 

named.      Shainwald   v.   Davids,   69  (X.  Y.)    204   (1832). 
Fed.   701    (C.   C.    1895).     Formerly  76.  See  Sec.  131,  arite,  p.  250. 


268 


EQUITY  PRACTICE 


§  139.  Bills  in  the  nature  of  revivor.  The  distinction 
between  bills  of  revivor  and  bills  in  the  nature  of  revivor 
is  that  the  first  in  case  of  death  are  founded  on  priority 
of  blood  or  representation  by  operation  of  law,  the  latter 
on  priority  of  estate  or  title  by  act  of  the  party.  In  the 
former  case,  nothing  is  in  issue  except  whether  the  party 
is  heir  or  personal  representative  of  the  original  party, 
in  the  latter  the  nature  and  operation  of  the  act  by  which 
the  priority  in  estate  or  title  was  created."'  Consequently, 
where  a  representative  becomes  such  by  a  title  which 
can  be  contested,  as  for  instance  by  devise,  a  bill  in  the 
nature  of  revivor  must  be  filed.'* 

The  prayer  of  the  bill  is  substantially  the  same  as  that 
in  the  bill  for  revivor  proper,  and  the  plaintiff  is  likewise 
entitled  to  the  benefit  of  the  original  proceedings. 


77.  Illinois.  Welch  v.  Lewis,  31 
111.   446    (1S63). 

Massachusetts.  Pingree  v.  Coffin, 
12  Gray  (Mass.)  288  (1864). 

Michigan.  Phillips  v.  Jacobs, 
145  Mich.  108  (1906);  Barnett  v. 
Powers,  40  Mich.  317   (1879). 

New  Jersey.  Lyons  v.  Van  Riper, 
26  N.  .T.  Eq.  337  (1875);  Peer  v. 
Cookerow,  14  X.  J.  Eq.  361  (1862). 

Tennessee.  Anderson  v.  McXeal, 
4  Lea   (Tenn.)  303  (1880). 

United  States.  Kennedy  v.  Geor- 
gia State  Bank,  8  How.  610,  12  L. 
ed.  1,209  (1850);  Slack  v.  Walcott, 
3  Mason  508,  Fed.  Gas.  12,932 
(1825). 

It  seems  that  the  objection  that 
a  devisee  must  bring  a  bill  in  the 
nature  of  revivor  may  be  taken  by 
answer,  plea,  or  demurrer.  Slack 
V.  Walcott,  2  Mason  508,  Fed.  Gas. 
12,932  (1825). 

The  only  proper  parties  to  a 
bill  in  the  nature  of  revivor  are 
those  who  can  execute  the  decree 
or  be   the  object  of  its   operation. 


Peer  v.  Gookerow,  14  X.  J.  Eq.  361 
(1862).  Therefore,  persons  who 
were  parties  to  the  original  suit, 
may  be  omitted  from  the  bill 
brought  to  revive  it.     (Ibid.) 

78.  Mitford's  Eq.  PI.  (Tyler's 
ed.)  169.  It  would  seem  that  there 
is  more  opportunity  in  modern  prac- 
tice for  employment  of  a  bill  in 
the  nature  of  revivor  than  for  a 
bill  of  revivor  proper,  since  the 
statutes  generally  apply  only  to 
cases  of  survival  of  suits  to  the 
legal  representative  by  operation  of 
law  purely,  and  not  by  devise. 

A  bill  in  the  nature  of  revivor 
would  seem  to  be  the  natural  rem- 
edy where  plaintiff  dies  after  de- 
cree, and  defendant  wishes  to  avail 
himself  of  the  decree  against  plain- 
tiff 's  devisee.  See  Prouty  v.  Moss, 
111  111.  App.  536  (1903);  Fretz  v. 
Stover,  22  Wall.  198  (1874);  Xew- 
comb  V.  Murray,  77  Fed.  492  (C.  C. 
1896) ;  Sharon  v.  Terry,  36  Fed.  337 
(G.  G.  1888). 


BILLS  NOT  ORIGINAL  269 

§  140.  Bills  of  revivor  and  supplement.  These  bills  are 
merely  a  combination  of  the  bill  of  revivor  and  a  supple- 
mental bill,  the  latter  being  added  to  and  made  a  part  of 
the  former,  and  in  their  separate  parts  they  must  be 
framed  and  proceeded  upon  in  the  same  manner.  They  be- 
come proper  where  not  only  an  abatement  has  taken  place 
in  the  suit,  but  defects  are  to  be  supplied,  or  a  new  event 
such  as  a  settlement  or  devise  which  has  arisen  since  the 
institution  of  the  suit  is  to  be  stated.'^^ 

§  141.  Class  II — Bills  not  supplementing  or  reviving 
but  relating  to  original  bills — Cross  bills.  A  cross  bill  is  a 
bill  brought  by  a  defendant  in  a  suit  against  the  plaintiff 
or  another  defendant  or  both,  touching  matters  in  ques- 
tion in  the  original  bill,  either  to  obtain  a  necessary 
discovery^"  of  facts  in  aid  of  the  defence  (no  longer 
generally  required  by  modern  practice)  or  to  obtain  full 
relief  to  all  parties.^  ^ 

The  cross  bill  for  relief,  which  is  the  only  one  requiring 
consideration  here,  may  be  either  to  establish  some  new 
matter  as  a  defence  merely  to  the  original  bill,*-  or  to 

79.  Webster  v.  Hitchcock,  11  in  some  jurisdictions  still  bo 
Mich.  56  (1863);  Eastman  v.  brought.  Millsaps  v.  Pfeifer,  44 
Batchelder,  36  N.  H.  191  (1858);  Miss.  805  (1870);  Chancery  Eules 
Eoss  V.  Hatfield,  2  N.  J.  E.  363  28  of  Florida,  30  of  Ehode  Island. 
(1840);  Manchester  v.  Mathewson,  But  by  Chancery  Eules  26  of  Mary- 
2  E.  I.  416  (1853);  Story's  Eq.  PI.  land  and  40  of  Pennsylvania  cross 
(10th  ed.).  Sec.  387;  Merry  weather  bills  for  discovery  only  are  abol- 
V.  Mellish,  13  Ves.  161,  settlement;  ished  and  interrogatories  are  sub- 
Eyland  v.  Latouche,  2  Bligh  566,  stituted,  and  by  Chancery  Eule  24 
devise.  of    Delaware    such    interrogatories 

80.  Millsaps  v.  Pfeifer,  44  Miss.  "may"  be  filed  instead  of  such 
805  (1870).  This  arises  from  the  cross  bill,  accompanying  a  petition 
former  rule  of  practice  which  pro-  which  is  to  "  have  the  same  effect ' ' 
hibited   a  plaintiff  from  being  ex-  as  a  cross  bill. 

amined   as   a   witness   in   the   suit.  81.  Mitford's    Eq.    PI.,    pp.    178, 

But  as  has  been  shown  previously,  179,  and  cases  cited  in  notes  82,  83, 

Sec.  32,  ante,  p.  34,  the  necessity  post. 

for   discovery  has  now  been  done  82.  Cross      bills      for      defence, 

away  with  by  statutes  allowing  par-  Cartwright  v.  Clark,  4  Met.  (Mass.) 

ties  to  suits  to  testify.     Neverthe-  110   (1842),  semhle ;  Gilmer  v.  Fel- 

less,  a  cross  bill  for  discovery  may  hour,  43  Miss.  627   (1871);  Neal  v. 


270 


EQUITY  PRACTICE 


afford  the  defendant  affirmative  relief.^^"'  When  a  cross 
bill  is  brought  for  relief  as  a  means  of  defence  merely,  it 
must  be  for  such  matter  of  defence  only  as  could  not  be 
obtained  by  plea  or  answer,^^    Eelief  obtained  in  this  way 


Foster,  13  Sawv.  236,  34  Fed.  496 
(C.  C.  1888);  and  see  cases  in  note 
84.  pat. 

83.  Cross  bills  for  affirmative  re- 
Uef: 

Alabama.  Bell  v.  McLaughlin, 
62  So.  79S  (Ala.  1913);  Abels  v. 
Planters',  etc.,  Co.,  92  Ala.  382 
(1S90>. 

Florida.  Price  v.  Stratton.  45 
Fla.  53.5   (1903). 

Illinois.  Zollman  v.  Jackson, 
etc.,  Bank.  23S  111.  290  (1909),  af- 
firming 141  111.  App.  265. 

Massachusetts.  Holbrook  v.  Scho- 
field,  211  Mass.  234  (1912^;  Atlan- 
tic Mills  V.  Mason,  120  Mass.  244 
(1S76  . 

Michigan.  GrabUl  v.  Barnhart, 
160  Mich.  81  (1910);  Tillage  v. 
Schmid,  151  Mich.  85  (1908). 

MississippL  Sigman  t.  Lundy, 
66   Miss.   522    (1889). 

New  Jersey.  Haberman  v.  Kau- 
fer.  60  X.  J.  E.  271   (1900). 

Pennsylvania,  Sears  v.  Seranton 
Trust  Co..  22>  Pa.  126  (1910). 

Bliode  Island.  Wetniore  v.  Fiske, 
15  R.  I.  354  (1886). 

Virginia.  Bagland  v.  Broadnas, 
29  Gratt.  (Va.)  401  (1877). 

West  Virginia.  Martin  v.  Kes- 
ter.  49  W.  Va.  647   (1901). 

United  States.  Chicago,  etc.,  Co. 
V.  Union,  etc..  Co.,  109  U.  S.  702 
(1883) ;  Hogg  v.  Hoag,  107  Fed.  807 
(C.  C),  154  Fed.  1,003,  83  C.  C. 
A.  677  (C.  C.  A.  1907);  Spring- 
field, etc.,  Co.  T.  Barnard,  81  Fed. 
261,  26  C.  C.  A.  369  (1897),  and  see 
cases  in  note  83,  post,  p.  273. 
See    Chapter    A  Mil,    "Dismiss- 


al," Sec.  322,  post,  p.  544,  in  re- 
gard to  dismissal  of  cross  bUls.  A 
cross  bill  is  not  dismissed  ipso  facto 
when  the  original  bill  is  dismissed, 
where  the  cross  bill  asks  affirmative 
relief.    Ibid. 

A  cross  bUl  cannot  be  filed  by  a 
person  who  was  not  a  party  to  the 
original  suit.  Curtis  v.  Curtis,  60 
So.  167  (Ala.  1912);  Hackley  v. 
Mack,  60  Mich.  591  (1886) ;  Payne 
V.  Cowan,  Smedes  &  M.  Ch.  (Miss.) 
26  (1843);  Mutual,  etc.,  Co.  v. 
Cokefair,  41  X.  J.  Eq.  142  (1886); 
Lovell  v.  Latham  &  Co.,  211  Fed. 
374  (1913);  Thurston  v.  Big 
Stone  Gap,  etc.,  Co.,  86  Fed. 
4S4  (1898);  Gregory  v.  Pike, 
67  Fed.  837,  33  CCA.  76 
(1885).  But  in  Pechtel  v.  MeCul- 
logh,  49  W.  Va-  520  (1901),  a  peti- 
tion by  a  third  party  was,  under 
the  West  Virginia  practice,  treated 
as  a  cross  bill  against  a  defendant, 
such  that  dismissal  of  original  bill 
did  not  dismiss  this  petition. 

A  cross  bill  cannot  be  filed  by 
one  improperly  made  a  party.  Xew- 
berry  v.  Blatchford,  106  IlL  584 
(1883).  A  purchaser  pendente  lite 
from  a  party  to  the  suit  has  such 
privity  as  entitles  him  to  file  bill 
in  nature  of  cross  bill  to  make  him- 
self party.  Whitbeck  v.  Edgar,  2 
Barb.   (X.  Y.)   106  (1847). 

84.  Otherwise  it  will  be  demur- 
rable. 

Florida.  Herrin  v.  Abbe,  55  Fla. 
769  (1908),  cross  bill  adding  noth- 
ing to  answer  may  not  be  filed 
after  testimony  taken. 

Illinois.     Zerban  v.  Eidmann,  258 


BILLS  NOT  ORIGINAL 


271 


is  chiefly  of  two  kinds.  First,  where  matter  of  defence 
arises  after  the  cause  is  at  issue  which  at  common  law 
may  be  made  the  subject  of  a  plea  puis  darrein  contin- 
uance, such  as  a  release  given  the  defendant  by  the  plain- 
tiff, or  an  award  made  on  a  reference,  or  an  assignment 
by  the  plaintiff  of  all  his  interest  in  the  subject  matter 
of  the  suit,  after  issue  joined,  a  defendant  in  equity  cannot 
avail  himself  of  either  of  these  defences  by  plea  or 
answer,  and  therefore  he  must  make  them  the  subject  of  a 
cross  bill.^^  Secondly,  it  frequently  happens,  especially 
where  any  question  arises  between  defendants  with  oppo- 
site interests,  that  the  court  cannot  make  a  complete 
decree  without  a  cross  bill  by  one  defendant  against  the 
plaintiff  and  some  or  all  of  the  other  defendants,  to  bring 
every  matter  in  dispute  completely  before  the  court,  and 
in  pursuance  of  the  principle  usually  followed  by  courts 
of  equity  to  determine  the  rights  of  all  parties  in  one 
suit.8« 


111.  486  (1913);  Dunbar  v.  Am.  Tel. 
&  Tel.  Co.,  224  111.  9  (1906),  cross 
bill  cannot  be  filed  by  nominal 
party  who  can  get  sufficient  relief 
through  the  decree;  Hook  v.  Kiehe- 
son,  115  111.  431  (1886);  Wing  v. 
Goodman,  75  111.  159   (1874). 

Maryland.  Glenn  v.  Clark,  53 
Md.  580   (1880). 

Massachusetts.  Bogle  v.  Bogle,  3 
Allen  158  (1861). 

Mississippi.  Buckingham  v. 
Wesson,  .54  Miss.  526    (1877). 

Pennsylvania.  Freeland  v.  South 
Pcnn,  etc.,  Co.,  109  Pa.  St.  54 
(1899). 

Tennessee.  Woodard  v.  Bird,  105 
Tenn.  671  (1900). 

Virginia.  Tate  v.  Vance,  27 
Gratt.    (Va.)   571   (1876). 

United  States.  Eiekey,  etc.,  Co. 
V.  Miller,  218  U.  S.  258,  54  L.  ed. 
1032  (1910),  affirming  152  Fed.  11 
(C.  C.  A.  1907),  146  Fed.  574  (C.  C. 


1907) ;  Am.,  etc.,  Corp.  v.  Marquam, 
62  Fed.  960  (C.  C.  1894),  between 
codefendants. 

A  cross  bill  filed  by  a  defendant 
to  a  bill  to  quiet  title  who  had 
refused  to  join  as  plaintiff  to  the 
original  bill,  was  dismissed  because 
it  merely  asked  for  the  same  relief 
as  the  original  bill,  in  Eoby  v.  So. 
Park  Commrs.,  252  111.  575   (1912). 

85.  Thomas  v.  Thomas,  250  111. 
354,  rev.  155  111.  App.  619  (1911); 
Mills  V.  Larrance,  186  111.  635 
(1900),  release;  Lambert  v.  Lam- 
bert, 52  Me.  544  (1864),  assignment; 
Pue  V.  Pue,  4  Md.  Ch.  387  (1848), 
assignment;  Powers  v.  Hibbard,  114 
Mich.  533   (1897),  new  facts. 

But  the  new  facts  must  not  con- 
stitute an  entirely  new  cause,  see 
note  95,  post,  p.  277. 

86.  Cross  bills  between  code- 
fendants. Dawson  v.  Vickery,  150 
111.   398    (1894);   Chicago,  etc.,   Co. 


272 


EQUITY  PRACTICE 


"Wlien  affirmative  relief  is  desired,  it  is  a  general  prin- 
ciple in  chancery  practice  that  this  relief  can  be  had  only 
by  cross  bill,  and  not  by  inserting  the  facts  in  support 
thereof  in  the  answer.^^  Thus  in  a  bill  for  specific  per- 
formance, if  the  defendant  desires  to  have  the  contract 
given  up  and  cancelled,  in  order  to  prevent  further  litiga- 
tion for  damages  at  law  in  case  the  plaintiffs  fail  to  obtain 
specific  performance,  he  must  bring  his  cross  bill,  since 


V.  Connecticut,  etc.,  Co.,  57  HI.  424 
(1870) ;  Forbes  v.  Thorpe,  209  Mass. 
570  (1911);  Asbury  Park,  etc.,  Co. 
V.  Township  Committee,  73  X.  J. 
Eq.  323  (1907).  In  the  case  last 
cited,  the  court  draws  a  distinction 
between  cross  bills  against  code- 
fendants  and  cross  bills  against  the 
plaintiffs,  in  respect  to  the  charac- 
ter of  the  remedv  sought,  stating 
that  in  the  latter  case  the  rule  is 
more  liberal,  and  merely  a  legal 
remedy  may  be  sought. 

A  decree  may  be  granted  be- 
tween codefendants  on  evidence 
taken  in  the  case  between  plain- 
tiffs and  defendants.  Either  of 
such  defendants  has  the  right  to 
insist  that  since  the  matter  can  be 
adjusted  in  one  suit,  it  shall  be, 
and  it  is  even  held  ground  of  ap- 
peal if  the  court  refuse  to  decree 
accordingly.  Vanderveer  v.  Hol- 
comb,  17  "x.  J.  E.  87  (1864),  af- 
firmed 17  X.  J.  E.  547  (1866);  El- 
liott v.  Pell,  1  Paige  (X.  Y.)  263 
(1828);  Vance  v.  Evans,  11  W.  Va, 
342,  370  (1877);  Louis  v.  Brown 
Township,  109  U.  S.  162  (1883); 
scmhle  contra,  Smith  v.  Woolfolk, 
115  U.  S.  143  (18S4).  But  where 
affirmative  relief  is  desired  be- 
tween codefendants,  a  cross  bill 
must  be  brought.  Howe  v.  South 
Park  Commissioners,  119  111.  101 
(1886);  Brinckerhof  v.  Franklin,  21 


X.  J.  E.  334  (1871);  Freeman  v. 
Egnor,  79  S.  E.  824  (W.  Va. 
1913);  Parsons  v.  Smith,  46  W.  Va. 
728  (1899);  Commercial  Bank  v. 
Sandford,  103  Fed.  98  (C.  C.  1900). 

A  cross  bill  by  an  improper  de- 
fendant against  a  proper  defend- 
ant may  be  stricken  out  on  motion 
of  the  latter.  Gordon  v.  Sherman, 
146   X.   W.    100    (Mich.   1913). 

87.  Alabama,  Ashe  Corson  Co. 
V.  Bonifay,  14  Ala.  376  (1906); 
Hendrix  v.  So.  E.  Co.,  130  Ala.  205 
(1900). 

Florida.  Oeala  Foundry,  etc.,  Co. 
A-.  Lester,  49  Fla.  347   (1905). 

Massachusetts.  Andrews  v.  Gil- 
man,  122  Mass.  471  (1877). 

MicMgan.  Vary  v.  Shea,  36 
Mich.  3SS  (1S77). 

New  Jersey.  Beck  v.  Beck,  43 
X.  J.  E.  39  (1SS7  i :  French  v.  Grif- 
fin. IS  X.  ,J.  E.  279  (1S67). 

Pennsylvania.  Williams  v.  Con- 
cord Cong.  Church,  193  Pa.  S.  120 
(1S99). 

Tennessee.  Griffith  v.  Security, 
etc.,  Assn.,  100  Tenn.  410  (1898). 

United  States.  McPherson  v. 
Cox,  96  U.  S.  404  (1S77);  Inter- 
state, etc.,  Assn.  v.  Edgefield,  etc., 
Co.,  120  Fed.  422,  affirmed  134  Fed. 
74,  67  C.  C.  A.  200  (1904-5);  Xelson 
V.  Lowndes  County,  93  Fed.  538  (C. 
C.  1899). 


BILLS  NOT  ORIGINAL 


273 


such  relief  cannot  otherwise  be  obtained  in  the  same 
suit.^^  But  there  have  always  been  exceptions  to  the 
general  princiiDle ;  ^^  and  in  some  jurisdictions  the  prin- 
ciple has  been  superseded  by  rules,  statutes  or  decisions 
which  freely  permit  affirmative  allegations  in  answers.''" 


88.  Sanford  v.  Cloud,  17  Fla.  557 
(1880);  Bay  v.  Schrader,  50  Miss. 
326  (187-4);  Duryee  v.  Liusiieimer, 
27  N.  J.  E.  366  (1876);  Freeland 
V.  South,  etc.,  Co.,  189  Pa.  S.  54 
(1899).  Other  examples  of  cross 
bills  for  affirmative  relief  are  given 
in  note  83,  ante,  p.  270. 

89.  The  defendant  to  a  bill  for 
an  account  may  have  a  decree  for 
any  balance  due  him,  without  fil- 
ing a  cross  bill.  O'Kelley  v.  Clark, 
63  So.  948  (Ala.  1913);  Branch 
Bank  v.  Strother,  15  Ala.  51 
(1848);  Ocala  Foundry,  etc.,  Co.  v. 
Lester,  49  Fla.  347  (1905),  semble; 
Nyburg  v.  Pearce,  85  111.  393 
(1877);  Braman  v.  Foss,  204  Mass. 
404  (1910);  Haskin  v.  Haskin,  55 
Vt.  263  (1882);  Ayliffe  v.  Murray 
(Eng.  Ch.),  2  Atk.  59. 

Specific  performance  may  be  de- 
creed against  the  plaintiff  without 
a  cross  bill  when  the  agreement  set 
up  by  the  defendant,  which  he  of- 
fers to  perform,  is  found  by  the 
court  to  be  the  actual  agreement 
rather  than  the  agreement  stated 
by  the  plaintiff  in  his  bill  for  spe- 
cific performance.  Fife  v.  Clay- 
ton, 13  Ves.  546.  No  cross  bill  is 
necessary  for  set  off  in  a  foreclo- 
sure suit.  McCaskey  v.  Barr,  48 
Fed.  130  (C.  C.  1891).  Or  for  fore- 
closure in  favor  of  the  defendant 
in  a  redemption  suit.  Mooney 
v.  Walker,  69  Ala.  75  (1881). 
Compare  Ross  v.  New  England,  etc., 
Co.,  ]01  Ala.  362  (1893).  Or  for 
partition  in  favor  of  the  defeud- 
Whitehouse  E.  P.  Vol.  I — 18 


ant  in  a  partition  suit.  Freeland 
v.  South  Penn  Oil  Co.,  189  Pa.  54 
(1899). 

By  consent  of  the  parties,  an  an- 
swer may  sometimes  be  treated  as 
a  cross  bill.  Gray  v.  Taylor,  38  Atl. 
951,  modified  59  N.  J.  E.  621 
(1899);  Green  v.  Stone,  54  N.  J.  E. 
401  (1896);  Passumpsic,  etc..  Bank 
V.  First,  etc..  Bank,  53  Vt.  82 
(1880). 

No  cross  bill  is  needed  where 
relief  will  follow  incidentally  from 
the  decree  in  favor  of  the  plain- 
tiff. Dunbar  v.  Am.  Tel.  &  Tel. 
Co.,  238  111.  456,  reversing  142  111. 
App.  6  (1908-9).  Nor  in  order  to 
secure  to  the  defendant  protection 
which  is  accorded  by  the  principle 
that  he  who  seeks  equity  must  do 
equity.  Farmers',  etc.,  Co.  v.  Den- 
ver, etc.,  Co.,  126  Fed.  46,  60  C.  C. 
A.   588    (1903). 

Compare  cases  in  footnote  84, 
ante,  p.  270,  and  see  See.  263  in 
Chapter  XIII,  "Answers,"  post,  p. 
453. 

90.  Alabama.     Code,   Sec.    3,118. 

Illinois.  McGillis  v.  Hogan,  85 
111.  App.  194,  aff.  190  111.  176 
(1901). 

Maryland.  Munich,  etc.,  Ins.  Co. 
V.  United,  etc.,  Co.,  113  Md.  200 
(1910). 

Michigan.  Eq.  Rule  11;  Coach  v. 
Kent  Cir.  J.,  97  Mich.  563   (1893). 

Mississippi.     Code,  Sec.  587. 

New  Hampshire.  Cox  v.  Levis- 
ton,  63  X.  H.  283   (1884). 

New  Jersey.    Eq.  Rule  206. 


274 


EQUITY  PRACTICE 


A  cross  bill  it  seems  may  be  filed  without  leave  of 
court ''^  but  it  should  be  filed  before  the  issue  on  the 
original  bill  is  joined,  and  in  general  chancery  practice 
before  the  publication  of  the  evidence,  unless  the  plaintiff 
in  the  cross  bill  will  go  to  hearing  on  the  proofs  already 
published.^^    But  publication  may  be  postponed  to  enable 


Rhode  Island.  G.  S.  Ch.  289,  Sec. 
13. 

Tennessee.  Code,  Sees.  6,125, 
6,133;  Eakin  v.  Riddle,  155  S.  W. 
166   (Tenn.  1913). 

Vermont.  Redfield  v.  Gleasou,  61 
Vt.  220  (1888);  Eq.  Rule  26. 

Virginia.  Derbyshire  v.  J  ones, 
94  Va.  140  (1896). 

West  Virginia.  Turner  v.  Stew- 
art, 51  W.  Va.  493  (1902);  Kana- 
wha Lodge  V.  Swain,  37  W.  Va. 
176  (1892);  Code,  Sec.  3,855.  In 
Pechtel  V.  McCullogh,  49  W.  Va. 
520  (1901),  a  petition  bv  a  stranger 
was  treated  as  a  erogs  bill. 

United  States.     Eq.  Rule  30. 

91.  Quick  V.  Lemon,  105  111.  578 
(1883);  New  York,  etc.,  Co.  v. 
Borough,  75  Atl.  177  (N.  J.  1910); 
Christmas  Gold,  etc.,  Co.  v.  Milli- 
ken,  200  Fed."  316  (1912),  cross  bill 
accompanying  answer;  Neal  v.  Fos- 
ter, 13  Sawy.  236,  34  Fed.  496  (C. 
C.  1888).  In  Gregory  v.  Pike,  29 
Fed.  588  (C.  C.  1886),  and  Indi- 
ana, etc.,  Co.  V.  Liverpool,  etc., 
Co.,  109  U.  S.  168  (1883),  leave 
was  asked  and  in  the  one  case 
granted  and  in  the  other  refused. 
In  Dickerman  v.  Northern  Trust 
Co.,  80  Fed.  450,  25  C.  C.  A.  549 
(1897),  affirming  decree  75  Fed. 
936,  affirmed  176  U.  S.  181,  44  L. 
ed.  423  (1900),  it  was  held  that  the 
court  ma.v  dismiss  a  bill  without 
putting  complainant  to  demurrer, 
if  persons  given  leave  to  file  a 
cross  bill  abuse  the  privilege.      In 


Massachusetts  leave  of  court  is 
necessary  before  filing  cross  bill. 
Eq.  Rule  14;  Holbrook  v.  Schofield, 
211  Mass.  234  (1912),  and  so  held 
in  Indiana,  etc.,  Co.  v.  Nichols,  etc., 
Co.,  190  Fed.  579  (C.  C.  1911). 

92.  Cartwright  v.  Clark,  4  Met. 
(Mass.)  104  (1842).  The  court 
here  dismissed  the  cross  bill,  but 
pointed  out  that  a  cross  bill  may 
be  allowed  after  publication,  or 
even  after  hearing,  if  necessary, 
but  the  original  proceedings  are 
not  to  be  delayed  except  on  special 
order  of  court.  Other  cases  in  re- 
gard to  the  time  of  filing  are  these: 
Cross  bill  before  answer  was  strick- 
en from  the  files  in  Ballard  v.  Ken- 
nedy, 34  Fla.  483  (1894),  but  in 
Cobb  V.  Baxter,  1  Tenn.  Ch.  405 
(1873),  such  filing  was  held  proper. 
A  cross  bill  after  testimony  taken 
was  not  permitted  in  Herrin  v. 
Abbe,  55  Fla.  769  (1908).  A  cross 
bill  after  decree  was  not  permitted 
in  Malone  v.  Carroll,  33  Ala.  191 
(1858),  in  Finlayson  v.  Lipscomb, 

16  Fla.  751  (1878)  and  in  Nix  v. 
Thackaberry,  240  III.  352  (1909), 
but  was  permitted  to  a  third  party 
who  had  been  impleaded,  although 
the  two  original  parties  had  set- 
tled their  controversy,  in  Ulmer  v. 
Jaeger's  Admr.,  155  Fed.  1,01]  (C. 
C.  1907) ;  and  was  permitted  after 
interlocutory  decree  against  a  co- 
defendant,  in  Vanderveer  v.  Hol- 
comb,    17    N.    J.    E.    87,    affirmed 

17  N.  J.  E.  547   (1864-6).     A  cross 


BILLS  NOT  ORIGLNAL 


275 


a  defendant  to  file  a  cross  bill,  where  special  application 
is  made  showing  sufficient  grounds/^^ 

New  parties  may  be  introduced  by  cross  bill  where  the 
bill  is  filed  for  affirmative  relief.''^^    All  the  parties  to  the 


bill  after  reference  made  was  held 
proper  in  Interstate,  etc.,  Assn.  v. 
Ayers,  177  111.  9  (1898),  affirming 
71  111.  App.  529.  A  cross  bill  after 
hearing  was  held  improper  in  Hack- 
ley  V.  Mack,  60  Mich.  591  (1886), 
and  in  Roberts  v.  Peavey,  29  N.  H. 
392  (1853).  A  cross  bill  cannot 
be  filed  by  a  nominal  party  after 
a  consent  decree.  Cartwright  v. 
.Johnson,  110  Mich.  362  (1896).  A 
party  defaulted  for  want  of  an 
answer  cannot  file  a  cross  bill.  Ra- 
gor  V.  Brenock,  175  111.  494  (1898). 
In  Chicago,  etc.,  Co.  v.  Conn.,  etc., 
Co.,  57  111.  424  (1870),  a  cross  bill 
was  allowed  two  years  after  final 
decree,  but  in  Howison  v.  Ru- 
precht,  121  111.  App.  5  (1905),  a 
cross  bill  was  not  permitted  five 
years  after  dismissal  of  original 
bill  and  after  departure  of  original 
plaintiffs  from  the  forum.  There 
was  laches  also  in  Baker  v.  Oil  Co., 
7  W.  Va.  454  (1874). 

93.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  395.  The  general  rule,  how- 
ever, as  to  filing  a  cross  bill  be- 
fore publication  is  a  restriction  on 
the  defendant  only,  and  not  on 
the  court,  for  where  justice  re- 
quires it,  the  court  may  order  a 
cross  bill  to  be  filed  after  publica- 
tion. Story's  Eq.  PI.  (10th  ed.). 
Sec.  396. 

It  seems  that  a  cross  bill  must 
be  filed  in  the  same  Circuit  court 
as  the  original, — Neal  v.  Foster,  13 
Sawy.  236,  34  Fed.  496  (C.  G. 
1888), — and  probably  in  the  same 
county  of  a  state.  Tansey  v.  Mc- 
Donnell,  142  Mass.  220    (1886). 


93a.  Alabama.  P  a  u  1 1  i  n  g  v. 
Creagh,  63  Ala.  398  (1879);  Coster 
V.  Bank  of  Georgia,  24  Ala.  37 
(1853);  Code,  Sec.  3,118. 

Florida.  Indian  River,  etc.,  Co. 
V.  Wooten,  48  Fla.  271  (1905). 

Illinois.  Thompson  v.  Shoe- 
maker, 68  111.  256  (1873);  Kurd's 
Stat.,   Ch.   22,   Sec.    31. 

Maryland.  See  Eq.  Rule  26; 
Code,  Art.  16,  Sec.  158. 

Michigan.  Griffin  v.  Griffin,  118 
Mich.  446  (1898),  112  Mich.  87 
(1897). 

Mississippi.     See  Code,  ^ec.  587. 

New  Jersey.  Haberman  v.  Kau- 
fer,  60  N.  J.  E.  271  (1900). 

Pennsylvania.  Sears  v.  Scranton 
Trust  Co.,  228  Pa.  126  (1910).  See 
Eq.  Rule  40. 

Tennessee.  Pollard  v.  Wellford, 
99   Tenn.   113    (1897). 

Vermont.  Blodgett  v.  Hobart,  18 
Vt.  414   (1846). 

West  Virginia.  Martin  v.  Kes- 
ter,  46  W.  Va.  438  (1899);  Grobe  v. 
Roup,  46  W.  Va.  488  (1899),  an- 
swer treated  as  cross  bill. 

United  States.  Ullman  v.  Jae- 
ger's Admr.,  155  Fed.  1,011  (C.  C. 
1907) ;  Brandon  v.  Prime,  14 
Blatchf.  371,  Fed.  Cas.  1,810  (D.  C. 
1878). 

The  general  rule  is  often  stated 
that  a  cross  bill  cannot  introduce 
new  parties,  but  it  seems  doubtful 
whether  the  rule  has  at  the  pres- 
ent time  any  application  except  to 
cases  where  it  is  attempted  by 
cross  bill  to  bring  into  a  Federal 
court  parties  of  the  same  citizen- 
ship as  the  original  plaintiff.     In 


276 


EQUITY  PRACTICE 


original  bill  should  be  parties  also  to  the  cross  bill.^^^ 
§  142.  — Frame.  The  cross  bill  should  state  the  parties, 
jDrayer  and  object  of  the  original  bill,  the  proceedings 
thereon,  and  the  rights  of  the  party  bringing  the  cross 
bill  and  the  matters  which  he  sets  up  by  way  of  defence 
or  affirmative  relief,  and  pray  for  relief  accordingly,^* 


Bishop  V.  Miller,  48  Miss.  364 
(1S73),  a  demurrer  to  a  cross  bill 
was  sustained  in  a  careful  decision 
on  the  ground  that  new  parties 
were  introduced;  but  although  in 
Bichman  v.  Donnell,  33  N.  J.  E.  32 
(1S94),  there  is  a  dictum  to  the 
same  effect,  the  bill  seems  actually 
to  have  been  dismissed  rather  be- 
cause of  the  new  and  unrelated 
controversy  which  it  introduced; 
and  the  similar  decision  in  Cobb  v. 
Baxter,  1  Tenn.  Ch.  405  (1873), 
seems  to  be  overruled  by  later  Ten- 
nessee cases  (see  note  to  the  case 
in  the  report).  .  Derbyshire  v. 
Jones,  94  Va.  140  (1896),  may  be 
explained  as  a  case  of  an  answer 
treated  under  the  Virginia  prac- 
tice as  a  cross  bill;  to  permit  the 
introduction  of  new  parties  by  the 
answer  would  be  too  informal. 
Cecil  V.  Karnes,  61  "W.  Va.  543 
(1907),  like  the  New  Jersey  case 
above,  and  some  other  cases,  may 
be  explained  as  a  case  where  cross 
bill  was  dismissed  because  not  ger- 
mane to  the  original  controversy. 
Federal  cases  which  are  to  be  ex- 
plained on  the  jurisdictional  ground 
above  mentioned  are  these:  Shields 
V.  Barrow,  7  How.  130,  15  L.  ed. 
58  (1854);  Patton  v.  Marshall.  173 
Fed.  350,  97  C.  0.  A.  610  (1909); 
Newton  v.  Gage,  155  Fed.  598 
(1907). 

In  Forbes  v.  Thorpe.  209  Mass. 
570  (1911),  the  court  states  that  a 
cross    bill    between     codefendants 


should  not  bring  in  new  parties  not 
essential  to  the  case  as  set  forth 
by  the  plaintiff. 

Xew  parties  must  be  served  as 
in  original  bills,  but  no  service  is 
necessary  on  original  parties  other 
than  furnishing  their  counsel  with 
a  copy.  Alabama  Code,  Sec.  3,118; 
Illinois,  Hurd's  Stat.,  Ch.  22,  Sec. 
31;  Maryland  Code,  Art.  16,  See. 
158,  Eq.  26;  Mississippi  Code,  See. 
587;  Pennsylvania,  Eq.  Rule  40. 

93b,  Cox  V.  Price,  22  S.  E.  512 
(Va.  1895);  West  Virginia,  etc.,  Co, 
V.  Vinal,  14  W.  Va.  637  (1879) ;  Put- 
nam V.  Xew  Albany,  4  Biss.  465, 
Fed.  Cas.  11,481  (C.  C.  1869).  And 
in  McGillis  v.  Hogan,  85  111.  App, 
194,  affirmed  190  111.  176  (1901),  it 
was  held  not  to  be  error  to  refuse 
relief  under  a  cross  bill  where  a 
necessary  party  to  original  bill  was 
not  a  party  to  the  cross  bill. 

The  cross  bill  may  be  served  on 
the  attorney  of  the  plaintiff  if  the 
plaintiff  is  out  of  the  jurisdiction, 
Gregory  v.  Pike,  29  Fed.  588  (C.  C. 
1SS6);  or  an  infant.  Kinsbury  v. 
Buckner,  134  U.  S.  650   (1889). 

As  to  frame  of  cross  bills,  see 
also  Chancery  Rules  26  of  Mary- 
land and  40  of  Pennsylvania. 

94.  Phoenix,  etc.,  Co.  v.  Smith, 
95  Miss.  347  (1909);  United  States 
V   Reese.  166  Fed.  347  (C.  C.  1909). 

The  requisites  of  an  answer 
which  is  to  be  in  lieu  of  a  cross 
bill  under  the  practice  of  some  of 
the  states  are  the  same  as  for  a 


BILLS  NOT  ORIGINAL 


277 


A  cross  bill  must  not  introduce  new,  distinct  and  inde- 
pendent matters  not  connected  with  the  original  bill,^^ 
it  must  be  consistent  with  the  defence  made  by  the 
answer  ^^  but  must  not  be  equally  available  by  answer, 
and  must  pray  for  equitable  relief.'''  But  it  is  not  neces- 
sary that  the  cross  bill  should  exhibit  equitable  features 
in  order  to  give  the  court  jurisdiction,^^  since  that  is 


cross  bill.  Turner  v.  Stewart,  51 
W.  Va.  493  (1902);  Goff  v.  Price, 
42  W.  Va.  384  (1896);  Kanawha 
Lodge  V.  Swan,  37  W.  Va.  176 
(1892). 

95.  Florida.  Special  Tax,  etc., 
Dist.  V.  Smith,  61  Fla.  782   (1911). 

Illinois.  Patterson  v.  Northern 
Trust  Co.,  132  111.  App.  63,  affirmed 
230  111.  334,  231  111.  22  (1907). 

Maryland,  Canton  v.  McGraw, 
91  Md.  744  (1900). 

Massachusetts.  Slater  v.  Cobb, 
153  Mass.  22  (1891). 

Mississippi.  Stansel  v.  Hahn,  96 
Miss.  616  (1909);  District  Grand 
Lodge  V.  Leonard,  92  Miss.  777 
(1908). 

New  Jersey.  Bacharack  v.  Bart- 
lett,  81  N.  J.  Eq.  248  (1913);  Dore- 
mus  V.  Paterson,  71  N.  J.  E.  789, 
affirming  70  N.  J.  E.  296   (1905-6). 

Rhode  Island.  Paine  v.  Sackett, 
25  R.  L  561  (1904). 

Tennessee.  Memphis,  etc.,  Co.  v. 
Southern,  etc.,  Co.,  110  Tenn.  684, 
63  L.  R.  A.  150  (1903). 

Virginia.  Crockett  v.  Woods,  97 
Va,  391   (1899). 

West  Virginia.  Cecil  v.  Karnes, 
61  W.  Va.  543  (1907),  answer  could 
not  be  treated  as  a  cross  bill;  West 
Virginia,  etc.,  Co.  v.  Vinal,  14  W. 
Va.  637   (1879). 

United  States.  Patton  v.  Mar- 
shall, 173  Fed.  350,  97  C.  C.  A.  610 
(1909);  Kilbourn  v.  Hirner,  163 
Fed.  539  (C.  C.  1908), 


A  bill  which  is  objectionable  as 
a  cross  bill  on  the  ground  of  intro- 
ducing new  issues  may,  however, 
be  allowed  as  an  original  bill. 
Riggs  V.  Armstrong,  23  W.  Va.  760 
(1884), 

In  Sears  v,  Scranton  Trust  Co., 
228  Pa.  126  (1910),  it  was  held  that 
the  objection  that  a  cross  bill  is 
not  germane  may  be  waived  by  an- 
swering to  it. 

Many  bills  held  objectionable  on 
the  ground  discussed  in  this  note 
are  also  objectionable  on  the 
ground  of  introducing  new  parties. 
See  note  93a,  ante,  p.  275. 

96.  Ragor  v.  Brenoek,  175  111. 
494  (1898);  Martin  v.  Murphy,  102 
N.  E.  930  (Mass.  1914);  Jackson 
v.  Grant,  18  N.  J.  E.  145  (1866); 
Hudson  V.  Hudson,  3  Rand  (Va.) 
117    (1824). 

The  cross  bill  must  not  be  open 
to  the  objection  of  multifarious- 
ness. Plum  v.  Smith,  56  N.  J.  E. 
468   (1898). 

97.  See  note  84,  ante,  p.  270. 

98.  Davis  v.  Cook,  65  Ala.  617 
(1880);  Nelson  v.  Drum,  15  Ala. 
501  (1849);  Griffin  v.  Fries,  23  Fla, 
173  (1887);  Harding  v,  Olson,  76 
111.  App.  475,  affirmed  177  111.  298 
(1898);  Tobey  v.  Foreman,  79  111, 
489  (1875);  Wright  v,  Frank,  61 
Miss.  32  (1883).  In  Asbury  Park, 
etc..  Railway  v.  Township  Commit- 
tee, 73  N.  J.  E.  323  (1907),  it  is 
stated   that  where  a  cross  bill  is 


278 


EQUITY  PRACTICE 


obtained  under  the  original  bill,  and  consequently,  a 
demurrer  to  a  cross  biU  for  want  of  equity  will  not  lie.^^ 
Objection  for  any  of  the  above  defects  may  be  taken 
advantage  of  in  the  usual  manner  by  demuiTer,  plea  or 
answer  as  the  circumstances  require,  and  in  general  the 
defence  to  the  cross  bill  proceeds  as  on  an  original  bill, 
although  the  original  plaintiff  need  not  answer  the  cross 
bill  until  the  defendant  has  answered  the  original  bill.^^* 
Usually  the  two  biUs  are  heard  together  and  one  decree 
serves  for  both.i*>« 


drawn  against  a  plaintiff,  it  is 
sufficient  although  it  seeks  only 
a  legal  remedy,  unlike  a  cross  bill 
against  a  codefendant.  A  cross 
bill  asking  equitable  aid  cures  the 
defect  of  an  original  bill  where 
there  was  an  adequate  remedy  at 
law:  but  if  the  cross  biU  only  asks 
legal  remedy,  and  the  original  bill 
had  no  equity,  of  course  the  whole 
fails.  "Wachter  v.  Blowney,  104 
HI.  610   (1SS2^. 

99.  This  is  especially  true  in  case 
of  cross  bills  for  defence.  Lambert 
V.  Lambert,  52  Me.  544  (1S64); 
Cartwright  v.  Oark.  4  Met.  (Mass.) 
110  (1S42):  Gilmer  v.  Felhour,  45 
Miss.  627   (1S71). 

99a-  Florida.  Chancery  Bule  2S, 
where  cross  bill  is  for  discovery 
only. 

Illinois.  Hurd's  Stat.,  Ch.  22, 
Sec.  35. 

Maine.     Chancery  Bule  16. 

Massachusetts.  Chancery  Kule 
14. 

Micliigan.     Chancery  Bule  11. 

New  Jersey.  Comp.  Stat. ' '  Chan- 
cery '  ■  See.  3S. 

Rhode  Island.  Chancery  Bule  30, 
(where  crossbill  is  for  discovery 
only). 

Tennessee.    Code.  Sec.  621S. 

Virginia.    Code,  Sec.  3254. 


100.  Whyte  v.  Arthur,  17  X.  J. 
E.  521  (1S66).  The  court  will  dis- 
miss the  cross  bill  without  putting 
plaintiff  to  demurrer,  if  persons 
given  leave  to  file  cross  bill  abuse 
the  privilege.  Dickerman  v.  North- 
ern Trust  Co.,  SO  Fed.  450,  25  C.  C. 
A.  549,  affirming  decree  75  Fed.  936. 
afl&rmed  (1900.  176  U.  S.  181,  44 
L.  ed.  423. 

The  plaintiff  cannot  use  his  an- 
swer to  a  cross  bill  for  discovery 
as  evidence  on  the  hearing  unless 
original  defendant  does  so  first. 
Kidder  v.  Barr,  35  X.  H.  235 
(1S57). 

The  court  may  give  a  determina- 
tion upon  a  cross  bill  first,  if  the 
original  bill  appears  on  the  hearing 
to  be  not  yet  ready  for  decree. 
Carroll  v.  Taylor,  102  Tenn.  451 
(1S99).  If  the  cross  bill  is  to  be 
disregarded,  the  court  goes  ahead 
of  course  upon  the  original  bill  and 
answer.  Crabtree  v.  Levings,  5-> 
111.  526   (1870). 

If  a  person  who  files  a  cross  bill 
is  held  to  have  no  standing  in  court, 
all  others  who  attempt  to  share  in 
the  benefits  of  ^is  cross  bill  must 
abide  this  -result.  Stainback  v. 
Junk,  etc.,  Co.,  98  Tenn.  306 
(1897). 


BILLS  NOT  ORIGINAL 


279 


§  143.  Bills  of  review.  A  bill  of  review  in  general 
chancery  practice  is  a  bill  whose  object  is  to  procure  an 
examination  and  alteration  or  reversal  of  a  decree  made 
in  a  former  suit  in  equity  between  the  same  parties/ 
after  the  decree  has  become  final,  so  that  the  court  cannot 
in  the  original  proceedings  modify  it  on  motion  or  after  a 
rehearing.^  A  bill  of  review  may  be  brought  either  for 
errors  of  law  apparent  on  the  face  of  the  record,  or  for 
newly  discovered  facts,^     In  some  states  the  same  bill 


1.  Mitford's  Eq.  PI.  (Tyler's  ed.) 
181;  Planters',  etc.,  Bank  v.  Dun- 
das,  10  Ala.  661  (1846);  Bartlett  v. 
Fifield,  45  N.  H.  81  (1863) ;  Blondin 
V.  McArthur,  80  Atl.  663  (Vt. 
1911);  Acord  v.  Western,  etc..  Cor- 
poration, 156  Fed.  989,  aff.  174  Fed. 
1019,  98  C.  C.  A.  625  (1907-9). 

2.  The  time  when  a  decree  be- 
comes final  so  that  thereafter  a  bill 
of  review  is  necessary  for  modify- 
ing it  except  in  clerical  details  or 
as  to  inadvertent  omissions,  and  a 
petition  for  rehearing  will  not  lie, 
varies  in  different  jurisdictions. 
See  Chapter  XXIII,  "Decrees" 
Sec.  412,  "Drawing,  Filing  and  En- 
tering Decrees,"  post,  p.  654.  As 
to  petitions  for  rehearing  in  gen- 
eral, see  same  chapter.  Sees.  416, 
417,  pp.  659  et  seq. 

Prior  to  final  decree  a  bill  of 
review  does  not  lie.  Savage  v. 
Johnson,  127  Ala.  401  (1899); 
Plaisted  v.  Cooke,  181  Mass.  118 
(1902);  Hardwick  v.  Am.  Can  Co., 
115  Tenn.  393,  1  L.  R.  A.  (N.  S.) 
1029  (1905) ;  Dellinger  v.  Foltz,  93 
Va.  798  (1896);  Dingess  v.  Mar- 
cum,  41  W.  Va.  757   (1896). 

See  Chapter  IX,  "Pro  Con- 
fesso, "  Sec.  196,  post,  p.  373,  in  re- 
gard to  method  of  reviewing  final 
decrees  based  on  decrees  pro  con- 
fesso. 


3.  Delaware.  Cochrane  v.  Cou- 
per,  2  Del.  Ch.  27  (1837). 

Florida.  Mattair  v.  Card,  19 
Fla.  455    (1882). 

Illinois.  Judson  v.  Stevens,  75 
111.  255   (1874). 

Maine.  Crooker  v.  Houghton, 
61  Me.  337   (1878). 

Maryland.  Lanahan  v.  Lana- 
han,  110  Md.  176  (1909). 

Mississippi,  Mayo  v.  Clancy,  57 
Miss.   674    (1880). 

Pennsylvania.  Green 's  Appeal, 
59  Pa.  235  (1868). 

Vermont.  Barnum  v.  McDaniel, 
6  Vt.  177  (1834).   ■ 

West  Virginia.  Dingess  v.  Mar- 
cum,  41  W.  Va.  757  (1896). 

United  States.  Acord  v.  West- 
ern, etc.,  Corporation,  156  Fed.  989, 
aff.  174  Fed.  1019,  98  C.  C.  A.  625 
(1907-9) 

In  Kearns  v.  Kearns,  70  N.  J.  E. 
483  (1905)  it  is  held  that  a  bill 
attacking  a  decree  on  the  ground 
of  a  fraud  upon  the  court  in  re- 
spect to  jurisdiction  is  a  bill  of 
review  strictly,  requiring  leave  for 
filing,  and  not  a  bill  in  the  nature 
of  review  to  impeach  a  decree  for 
fraud,  which  requires  no  leave. 
There  is  a  dictum  to  the  same  ef- 
fect in  Watkinson  v.  Watkinson, 
68  N.  J.  E.  632,  69  L.  R.  A.  397 
(1905)    reversing  67  N.  J.  E.   142. 


280 


EQUITY  PRACTICE 


may  be  based  on  both  grounds,^"  although  two  states  hold 
to  the  contrary J^*^  In  a  few  states  bills  of  review  have 
been  superseded  in  practice  by  petitions  brought  under 
statutory  provisions,^  but  in  most  states  they  are  in  fre- 
quent use. 

§  144.  — Error  of  law.  In  a  bill  of  review  brought  for 
error  of  law,  the  rule  is  tliat  the  error  must  be  apparent 
on  the  face  of  the  record,  that  is,  in  this  country,  upon 
the  bill,  answer  and  other  pleadings  and  proceedings  and 
the  decree.^    It  is  not  allowable  to  look  into  the  evidence 


But  this  doctrine  is  apparently  pe- 
culiar to  New  Jersey. 

A  bill  may  be  sustained  as  a  bill 
to  impeach  a  decree  for  fraud, 
though  the  plaintiff  calls  it  a  bill 
of  review,  and  as  such  it  is  in- 
sufficient. Ex  parte  Smith,  34  Ala. 
455   (1859). 

The  same  bill  may  be  both  for 
error  apparent  and  newly  discov- 
ered matter.  Colvrlle  v.  Colville,  9 
Humph.  (Tenn.)  523  (1S4S); 
Eicker  v.  Powell,  100  U.  S.  104 
(1S79);  Acord  v.  Western,  etc., 
Corporation,  156  Fed.  9S9,  aff.  174 
Fed.  1019,  98  C.  C.  A.  625  (1907-9). 

3a.  Schaefer  v.  Wunderle,  154 
111.  577  (1895);  Bruschke  v.  Xord, 
etc.,  Verein,  145  Dl.  433  (1893); 
Elliott  V.  Balcom,  11  Gray  (Mass.) 
286   (1858). 

3b.  Curry  v.  Peebles,  83  Ala.  225 
(1887);  Gordon  v.  Eoss,  63  Ala.  363 
(1879);  Wilson  v.  Schaefer,  107 
Tenn.  300  (1901).  Compare  Don- 
alilson  V.  Nealis, 
(1902). 

4.  Maine,  E.  S.  Ch 
Beview  on  petition 
whenever  by  fraud, 
mistake  justice  has  not  been  done 
to  a  party  who  was  not  at  fault, 
but   the  petition   must  be   brought 


108    Tenn.    638 


79,  See.  38. 
is  allowed 
accident    or 


within  six  years  from  the  final  de- 
cree which  is  in  question. 

And  see  the  provisions  for  re- 
view by  petition  of  final  decrees 
grantetl  upon  decrees  pro  coiifesso, 
Chap.  IX,  Sec.  197,  post,  p.  376. 

Even  in  states  where  petitions 
of  review  are  customary,  bills  of 
review  may  still  be  used.  See 
Boyer  v.  Boyer,  77  X.  J.  Eq.  144 
(1910);  Blondin  v.  McArthur,  80 
Atl.  663  (Vt.  1911);  Gallatin,  etc., 
Co.  v.  Davis,  44  W.  Va.  109  (1897); 
Shenandoah  Valley  X.  Bank  v. 
Shirley,  26  W.  Va.  563  (1885). 

By  Pennsylvania  Eq.  Eule  91, 
petitions  for  a  "rehearing"  may 
be  brought  at  "any  time,"  even 
when  final  decree  has  issued.  Such 
petitions  brought  after  decree  are 
obviously  equivalent  in  purpose  to 
bills  of  review. 

5.  Alabama.  Smyth  v.  Fitzsim- 
mons,  97  Ala.  451  (1892);  Ashford 
V.  Patton,  70  Ala.  479   (18S1). 

Florida.  Mattair  v.  Card,  10 
Fla.   455   (1SS2). 

niinois.  Bruschke  v.  Xord,  etc., 
Verein,  145  111.  433  (1893). 

Maine.  Glover  v.  Jones,  95  Me. 
353   (1901). 

Massachusetts.  Corbett        v. 

Craven,    196   Mass.   319    (1907). 


BILLS  NOT  ORIGINAL 


281 


to  establish  it;  that  can  only  be  done  by  apj)eaL  But 
errors  on  the  record  in  matter  only  of  form  or  abatement 
are  not  considered  sufficient  grounds  for  reversing  a 
decree.*^ 

A  bill  of  review  for  error  apparent  may  be  brought 
without  leave  of  court/  but  it  will  not  lie  after  the  time 


New  Hampshire.  Bartlett  v. 
Fifield,  45  N.  H.  81   (1863). 

Tennessee.  Cox  v.  Bank  of 
Hartsville,  63  S.  W.  237  (Tenn. 
Ch.  App.  1900);  Wilson  v. 
JSehaefer,  107  Tenn.  300  (1901). 

Vermont.  Barnum  v.  McDan- 
iels,  6  Vt.  177   (1834). 

Virginia.  Valz  v.  Coiner,  110 
Va.  467   (1909). 

West  Virginia.  Peters  v.  Case, 
62  W.  Va.  33  (1907);  Dunn's  Ex. 
V.  Eenick,  40   W.  Va.   349    (1895). 

United  States.  Putnam  v.  Day, 
22  Wall.  60,  22  L.  ed.  764  (1874); 
Acord  V.  Western,  etc..  Corpora- 
tion, 156  Fed.  989,  aff.  174  Fed. 
1019,  98  C.  C.  A.  625  (1907-9). 

In  England  the  error  had  to  be 
apparent  on  the  face  of  the  decree, 
since  there  the  decree  always  re- 
cited the  substance  of  the  bill, 
answer  and  pleadings,  and  also  the 
facts  on  which  the  court  founded 
its  decree,  and  this  constituted  the 
legal  record  of  the  case.  In  this 
country,  the  bill,  answer  and  other 
pleadings,  and  the  decree  them- 
selves constitute  the  only  record, 
and  the  decree  does  not  recite 
them,  and  does  not  generally  state 
the  facts  on  which  the  decree  is 
made.  The  rule  above  stated  is 
therefore,  the  same  in  effect  in 
either  country,  but  must  be  stated 
differently. 

Misstatements  in  briefs  of  coun- 
sel    are     not    error    apparent    for 


which  a  bill  of  review  will  lie. 
Cox  v.  Bank  of  Hartsville,  63  B. 
W.  237  (Tenn.  Ch.  App.  1900;. 

In  Mulrey  v.  Carberry,  207 
Mass.  390  (1911)  a  bill  of  review- 
grounded  on  errors  of  law  was 
sustained,  although  facts  had  been 
omitted  from  the  record,  and  had 
to  be  put  in  evidence  dehors  the 
record,  which  showed  the  erron- 
eous action  of  the  court  on  the 
original  trial.  The  court  likened 
the  bill  to  one  for  review  for  newly 
discovered  evidence. 

6.  State  V.  White,  40  Fla.  297 
(1898);  Wilson  v.  Schaefer,  107 
Tenn.  300  (1901);  Whiting  v. 
Bank,  13  Pet.  6,  10  L.  ed.  33 
(1839) ;  Keith  v.  Alger,  124  Fed.  32, 
59  C.  C.  A.  552  (1903);  Hill  v. 
Phelps,  101  Fed.  650   (C.  C.  1900). 

7.  Griswold  v.  Heinroth,  154  111. 
App.  124  (1910);  Deuson  v.  Den- 
son,  33  Miss.  560  (1857);  Adams 
V.  Adams,  77  N.  J.  E.  123  (1910); 
Barnum  v.  McDaniels,  6  Vt.  177 
(1834);  Dunfee  v.  Childs,  45  W 
Va.  155  (1898)  overruling  dictum 
in  Amiss  v.  McGinnis,  12  W.  Va. 
371  (1878);  Lewis  v.  Holmes,  194 
Fed.  842  (C.  C.  A.  1912);  Acord  v. 
Western,  etc..  Corporation,  156  Fed. 
989,  aff.  174  Fed.  1019,  98  C.  C.  A. 
625  (1907-9).  No  affidavit  need 
be  filed  with  a  bill  for  review  for 
error  apparent  or  against  a  motion 
to  dismiss  it.  Griswold  v.  Hein- 
roth, 154  111.  App.  124  (1910). 


282 


EQUITY  PRACTICE 


when  a  writ  of  error  could  be  brought,^  or  an  appeal 
taken,^  or  in  some  jurisdictions  wlien  a  new  trial  could 
be  had  if  the  decree  were  a  verdict  in  an  action  at  law.^" 
In  a  few  states  the  codes  set  a  definite  time  limit  within 
which  bills  of  review  must  be  brought. ^^ 

§  145.  — Newly  discovered  matter.  A  bill  of  review 
may  be  brought  on  the  discovery  of  new  matter,  such  for 
example  as  a  release  or  receipt,  or  oral  evidence  of  suf- 
ficient weight  to  change  the  merits  of  the  cause  on  which 
the  decree  was  founded.  ^- 


8.  Stevenson  v.  Stevenson,  224 
111.  482  (1906);  Hancock  v.  Hutch- 
erson,  76  Va.  609  (1882);  Dunbar 
v-  Dunbar,  67  W.  Va.  518  (1910). 

9.  Maryland.  Pfeltz  v.  Pfeltz, 
1  Md.  Ch.  455  (1849).  See  also 
Holloway  v.  Safe  Deposit  Co.,  90 
Atl.   95    (Md.   1913). 

Michigan.  Eq.  Eule  27;  Sim- 
mons V.  Conklin,  129  Mich.  190 
(1901). 

New  Jersey.  Boyer  v.  Boyer,  77 
N.  J.  E.  144  (1910);  Watkiuson  v. 
Watkinson,  68  N.  J.  E.  632,  69 
L.  R.  A.  397  (1905)  reversing  67 
N.  J.  E.  142. 

Virginia.  Hancock  v.  Hutcher- 
son,  76  Va.  609   (1882). 

West  Virginia.  Dunbar  v.  Dun- 
bar, 67   W.    Va.   518    (1910). 

United  States.  Central  Trust  Co. 
V.  Grant  Locomotive  Works,  135 
U.  S.  207,  34  L.  ed.  97  (1890); 
Cocke  V.  Copenhaver,  126  Fed.  145, 
61  C.  C.  A.  211  (1903);  Chamber- 
lain V.  Peoria,  etc.,  R.  Co.,  118  Fed. 
32,  55  C.  C.  A.  54  (1902);  Blj^the 
Co.  V.  Hinckley,  111  Fed.  827,  49 
C.  C.  A.  647  (1901). 

That  a  bill  of  review  was 
filed  with  leave  will  not  pre- 
vent it  from  being  dismissed  on 
demurrer  if  it  affirmatively  shows 
that   it   was   filed   too   late.     Cope- 


land  V.  Bruning,  104  Fed.  169  (C.  C. 
1900). 

10.  Williams  v.  Starkweather,  24 
R.  I.  512  (1902),  25  R.  1.  77 
(1903). 

11.  Alabama.  Code,  Sec.  3178, 
application  for  leave  to  file  bill  of 
review  must  be  brought  within 
three  years  after  final  decree  ex- 
cept in  the  case  of  infants  or  in- 
sane persons,  who  have  until  three 
years  from  the  time  when  disabil- 
ity is  removed. 

Tennessee.  Similar  limit  of  three 
years.  Wilson  v.  Sehaefer,  107 
Tenn.  300   (1901). 

Virginia.  Code,  Sec.  3435,  bill 
must  be  exhibited  in  one  year 
after  decree  except  that  infants  or 
insane  persons  have  until  one  year 
after   removal   of   disability. 

West  Virginia.  Code,  Sec.  4951, 
similar  limit  of  three  years. 

12.  Story's  Eq.  Ph  (10th  ed.) 
Sec.  412.  As  to  oral  evidence  be- 
ing sufficient  ground  for  review 
as  well  as  written,  there  is  some 
difference  of  opinion  among  the 
decisions,  but  the  weight  of  au- 
thority, the  later  cases,  and  the 
better  reasoning  seem  to  hold  that 
oral  evidence  of  sufficient  weight 
in  the  opinion  of  the  court  to  show 
the  decree  to  have  been  erroneous 


BILLS  NOT  ORIGINAL 


283 


Such  new  matter,  however,  must  be  relevant  and 
material,  and  such  as  would  have  been  likely  to  produce 
a  different  determination.^^  It  must  first  have  come  to 
the  knowledge  of  the  party  after  the  time  when  it  could 
have  been  used  at  the  original  hearing,  and  must  be  such 
as  the  party  by  the  use  of  reasonable  diligence  could  not 
have  known. ^^ 


is  just  as  good  ground  for  review 
as  written  evidence.  Traphagen 
V.  Voorhees,  45  N.  J.  E.  41  (1889); 
Brown  v.  Nutter,  54  W.  Va.  82 
(1903). 

13.  Alabama.  Allgood  v.  Bank 
of  Piedmont,  130  Ala.  237  (1900), 
scnible. 

Florida.  Reynolds  v.  Florida, 
etc.,  R.  Co.,  42  Fla.  387  (1900) 
aff.  183  U.  S.  471,  46  L.  ed.  283. 

Illinois.  Lewis  v.  Topsieo,  201 
111.   320   (1903). 

Michigan.  Ryerson  v.  Eldred, 
23   Mich.   537    (1871). 

Tennessee.     Wilson  v.  Schaefer, 

107  Tenn.   300    (1901). 
Virginia.      Durbin    v.    Roanoke, 

etc.,  Co.,  108  Va.  468   (1908). 

West  Virginia.  Brown  v.  Nut- 
ter, 54  W.  Va.  82   (1903). 

United  States.  Southard  v.  Rus- 
sell, 57  U.  S.  (16  How.)  547,  14 
L.  ed.  1052  (1853);  Acord  v.  West- 
ern, etc.,  Corporation,  156  Fed.  989, 
aflf.  174  Fed.  1019,  98  C.  C.  A.  625 
n907-9). 

In  Durbin  v.  Roanoke,  etc.,  Co., 

108  Va.  468  (1908)  it  is  pointed 
out  that  the  newly  discovered  evi- 
dence cannot  be  called  merely 
cumulative,  when  on  the  original 
trial  there  was  no  evidence  at  all 
on  the  point  which  the  new  evi- 
dence establishes. 

14.  Alabama.  Banks  v.  Long, 
79  Ala.  319  (1885);  Waring  v. 
Lewis,  53  Ala.  615,  625   (1875). 


Florida.  Reynolds  v.  Florida, 
etc.,  R.  Co.,  42  Fla.  387  (1900) 
aff.  183  U.  S.  471,  46  L.  ed.  283 
(1902);  Finlayson  v.  Lipscomb,  16 
Fla.  751   (1878). 

Illinois.  Lewis  v.  Topsieo,  201 
111.  320  (1903) ;  Watts  v.  Rice,  192 
111.  123   (1901). 

Maryland.  Lanahan  v.  Lana- 
han,  110  Md.  176  (1909);  Safe, 
etc.,  Co.  V.  Gittings,  102  Md.  456, 
4  L.  R.  A.  (N.  S.)  865  (1906). 

Michigan.  Roberge  v.  DeLisle, 
158  Mich.  16  (1909);  Brown  v. 
Napper,   143   Mich.   636    (1906). 

New  Jersey.  Richards  v.  Shaw, 
77  N.  J.  E.  399   (1910). 

Tennessee.  Wilson  v.  Schaefer, 
107  Tenn.  300   (1901). 

Virginia.  Durbin  v.  Roanoke, 
etc.,  Co.,  108  Va.  468  (1908),  suffi- 
cient diligence  found  to  have  been 
used. 

West  Virginia.  Richmond  v. 
Richmond,  62  W.  Va.  206  (1907); 
Wethered  v.  Elliott,  45  W.  Va.  436 
(1898). 

United  States.  Rubber  Co.  v. 
Goodyear,  9  Wall.  805,  19  L.  ed. 
828  (1870);  Acord  v.  Western,  etc.. 
Corporation,  156  Fed.  989,  aflf.  174 
Fed.  1019,  98  C.  C.  A.  625  (1907-9); 
see,  also,  cases  in  note  18,  post,  p. 
286. 

Merely  employing  counsel  to 
look  after  one's  interest  will  not 
absolve  oneself  from  the  duty  of 
diligence.      Schaefer    v.    Wunderle, 


284 


EQUITY  PRACTICE 


It  seems  now  to  be  established  that  new  matter  dis- 
covered after  a  decree,  which  cannot  be  used  as  evidence 
of  any  matter  in  issue  in  the  original  cause,  but  which 
constitutes  an  entirely  new  issue,  may  nevertheless,  if  it 
clearly  shows  the  decree  to  have  been  erroneous,  be  the 
subject  of  a  bill  of  review.  ^^ 


154  111.  577  (1895);  Stockley  v. 
Stockley,  93  Mich.  307  (1892);  Ac- 
ord  V.  Western,  etc.,  Corporation, 
156  Fed.  989,  aff.  174  Fed.  1019,  98 
C.  C.  A.  625  (1907-9). 

15.  Lord  Redesdale  in  Mitford's 
Eq.  PI,  (Tyler's  ed.)  182,  183; 
Story's  Eq.  PI.  (10th  ed.),  Sees. 
415-6;  Dan.  Ch.  Pr.  (6th  Am.  ed.) 
1578.  Judge  Story  states  this  point 
in  directly  contradictory  ways  in 
Sees.  413  and  416,  but  the  authori- 
ties seem  to  support  the  statement 
in  Sec.  416,  and  given  in  the  text 
above.  Massie  v.  Graham,  3  Mc- 
Lean 41,  F.  C.  9,263  (C.  C.  1842); 
Ballard  v.  Searles,  130  U.  S.  50,  55 
(1888). 

Contra:  Cooper's  Eq.  PI.,  p.  91; 
Patterson  v.  Slaughter,  Ambl.  292; 
Young  V.  Keighley,  16  Ves.  Jr.  348; 
Dexter  v.  Arnold,  5  Mass.  303,  F. 
C.  3,856  (1829);  U.  S.  v.  Samper- 
yeac,  Hempst.  118,  F.  C.  16,216a 
(1831) ;  Vaughan  v.  Cutrer,  49  Miss. 
782  (1874).  All  these  cases  contra 
and  Coopet  's  Eq.  PI.  rest  for  their 
ultimate  authority  upon  the  dictum 
of  Lord  Hardwick  in  Patterson  v. 
Slaughter,  where  he  says:  "All  the 
bills  of  review  I  recollect  to  have 
known  were  of  new  matter  to 
prove  what  was  put  in  issue.  Lord 
Effingham's  case  was  so,  he  claimed 
under  an  old  entail  and  though  he 
afterwards  made  title  under  a  dif- 
ferent entail,  yet  the  issue  was  as 
claiming  under  some  old  entail  gen- 
erally."      But     Lord     Hardwick 's 


memory  in  this  particular  seems  to 
have  been  defective,  for  in  Norris 
\.  LeNeve,  3  Atk.  33,  35,  decided 
by  him,  he  is  reported  to  have  said 
that  this  (a  bill  in  the  nature  of 
review)  ' '  is  said  to  be  founded  upon 
new  matter,  not  at  all  in  issue  in 
the  former  cause  or  upon  matter 
which  was  in  issue  but  discovered 
since  the  hearing  of  the  cause." 
Again  in  the  case  of  Portsmouth 
v.  Lord  Effingham,  1  Ves.  Sr.  437, 
referred  to  by  Lord  Hardwick 
above,  also  decided  by  him,  he  said: 
"  If  a  bill  of  review  is  applied  for 
upon  new  matter  changing  the 
title,  it  is  just  it  should  be 
brought  and  let  the  party  have 
the  benefit  of  it  at  his  peril. 
.  It  is  clearly  a  new  case 
of  a  title  at  law  never  yet  tired, 
and  a  point  of  equity  before  the 
court  never  considered  in  this 
cause  and  never  in  specie  in  other 
causes.  .  .  .  On  the  whole, 
therefore,  I  am  of  the  opinion  the 
petitioner  should  be  at  liberty  to 
bring  a  bill  of  review  to  reverse 
or  alter  the  decree  upon  the  new 
matter  alleged."  It  seems  difficult 
to  see  how  "new  matter  changing 
the  title"  or  a  "title  at  law  never 
yet  tried"  could  be  anything  else 
than  new  matter  not  before  in 
issue,  and  the  fact  that  it  was 
also  a  title  by  entail  and  therefore 
the  same  general  kind  of  title  does 
not  change  the  fact  that  it  was  a 
new  and  different  title  not  before 


BILLS  NOT  ORIGINAL 


285 


Leave  of  court  must  always  be  obtained  before  a  bill 
of  review  can  be  filed  on  the  ground  of  newly  discovered 
evidence. ^^  Application  for  such  leave  should  be  made 
by  petition,  supported  by  an  affidavit  setting  out  the 
new  matter  with  particularity/^  so  that  the  court  may 


in  issue.  In  Young  v.  Keighley,  16 
Ves.  Jr.  348,  the  court  says  that 
the  decisions  appear  not  to  have 
allowed  bills  of  review  for  new 
matter  not  before  in  issue,  es- 
pecially when  enough  appears  to 
suggest  that  the  plaintiff  might 
have  discovered  it  by  use  of  rea- 
sonable diligence,  and  the  decision 
seems  to  have  gone  oflf  mainly  on 
this  latter  point.  And  see  Part- 
ridge V.  Usborne,  5  Euss.  195; 
Anon.,  Freeman's  Eng.  Eq.  Kep. 
.31. 

16.  Florida.  Eeynolds  v.  Flor- 
ida, etc.,  R.  Co.,  42  Fla.  387  (1900) 
aff.  183  U.  S.  471,  46  L.  ed.  283 
(1902). 

Illinois.  Schaefer  v.  Wunderle, 
154  111.  577   (1895). 

Maryland.  Pfeltz  v.  Pfeltz,  1 
Md.   Ch.  455    (1849). 

Massachusetts.  Elliott  v.  Bal- 
com,  11   Gray    (Mass.)    286    (1858). 

Michigan.     Eq.  Rule  27. 

Mississippi.  Vaughan  v.  Cutrer, 
49  Miss.  782  (1874). 

New  Jersey.  Kearns  v.  Kearns, 
70  N.  J.  E.  483   (1905). 

Tennessee.  Wilson  v.  Schaefer, 
107  Tenn.  300   (1901). 

Virginia.  Hatcher's  v.  Hatch- 
er's, .77  Va.  600  (1883),  under 
statute. 

V/est  Virginia.  Nichols  v. 
Nichols'  Heirs,  8  W.  Va.  174 
(1875). 

United  States.  Acord  v.  West- 
ern, etc.,  Corporation,  156  Fed.  989, 
aflf.  174  Fed.  1019,  98  C.  C.  A.  625 


(1907-9);  and  see  cases  in  notes 
17-20,  post. 

Leave  is  necessary  for  filing  a 
bill  which  asks  review  both  for 
error  apparent  and  for  new  evi- 
dence, and  such  a  bill  if  filed  with- 
out leave  cannot  be  amended,  to 
save  dismissal,  by  striking  out  the 
allegations  in  regard  to  the  new 
evidence.  Glos  v.  People,  102  N.  B. 
763     (111.    1913). 

If  the  bill  is  filed  without  leave, 
or  if  when  filed  it  does  not 
conform  with  the  leave  that  has 
been  given,  it  will  be  dismissed 
on  motion,  but  not  on  general  de- 
murrer. Glos  V.  People,  102  N.  E. 
763  (111.  1913);  Buckingham  v. 
Corning,  29  N.  J.  E.  238  (1878); 
Fenley  v.  Taylor,  8  Baxt.  (Tenn.) 
237  (1874);  Dance  v.  McGregor, 
5  Humph.  (Tenn.)   428   (1844). 

Appearing  and  either  demurring 
or  answering  waives  right  to  ob- 
ject to  lack  of  leave  granted. 
Manufacturers',  etc.,  Co.  v.  Lind- 
blom,  68  111.  App.  539  (1897);  Jer- 
ome V.  McCarter,  94  U.  S.  734,  24 
L.  ed.   136   (1876), 

A  refusal  of  leave,  it  seems,  is 
a  bar  to  a  subsequent  application. 
Hill  V.  Bowyer,  18  Gratt.  (Va.) 
364  (1868). 

17.  Illinois.  Hultberg  v.  Ander- 
son, 252  HI.  607  (1912);  Lewis  v. 
Topsico,   201   111.   320    (1903). 

Mississippi.  Vaughan  v.  Cutrer, 
49  Miss.  782   (1874). 

New  Jersey.  Watkinson  v.  Wat- 
kinson,   68  N.  J.  E.  632,  69  L.  R. 


286 


EQUITY  PRACTICE 


judge  whether  it  is  relevant  and  material;  and  the 
petition  must  state  and  affidavits  show  that  .it  did  not 
come  to  the  knowledge  of  the  jietitioner  in  time  to  use  it 
in  the  original  cause,  and  could  not  by  reasonable  dili- 
gence have  been  discovered  earlier.^*    Such  leave  to  file 


A.  397  (1905)  reversing  67  X.  J. 
E.  142. 

Pennsylvania.  Buck  v.  Buck, 
195  Pa.  373   (1900). 

Rhode  Islanu.  Doyle  v.  X.  Y., 
etc.,  R.  Co.,  14  E.  I.  55  (1SS2). 

Tennessee.  Puryear  v.  Puryear, 
5  Baxt.  (Tenn.)  640  (1875). 

Virginia.  Xorfolk  Trust  Co.  v. 
Foster,   78   Va.  413   (1884). 

West  Virginia.  Xichols  v.  Xich- 
ols,  8  W.  Va.  174   (1875). 

United  States.  Poole  v.  Nixon, 
9  Pet.  App.  270,  Fed.  Cas.  11, 
270  (1834);  Dexter  v.  Arnold,  5 
Mass.  303,  F.  C.  3,8.56  (1829). 

The  new  evidence  must  be  shown 
by  the  affidavit .  not  to  be  merely 
hearsay.  Ward  v.  Ward,  149  Fed. 
204,  79  C.  C.  A.  162  (1906). 

A  telegram  cannot  be  filed  in 
lieu  of  an  affidavit.  Elzas  v.  El- 
zas,  183  m.  132  (1899). 

If  the  new  evidence  is  to  be 
proved  by  the  testimony  of 
witnesses,  the  affidavits  of  the 
witnesses  should  be  submitted, 
showing  what  they  will  testify. 
Finlayson  v.  Lipscomb,  6  Fla.  751 
(1878);  Schaefer  v.  Wunderle,  154 
m.  577  (1895);  Kern  v.  Wyatt,  89 
Va.  885  (1893);  Society  of  Shak- 
ers V.  Watson,  77  Fed.  512,  23  C.  C. 
A.  263  (1896).  In  Poole  v.  Xixon, 
9  Pet.  App.  270,  Fed.  Cas.  11,270 
(1834)  it  is  stated  that  affidavits 
should  be  submitted  of  all  per- 
sons who  might  be  accused  of  neg- 
ligence, in  order  to  establish  the 
absence  of  any  negligence. 

If  the  petition  is  heard  without 


affidavits,  their  absence  will  be 
taken  to  have  ben  waived.  Crau- 
ford's  Admr.  v.  Smith's  Exr.,  93 
\a.  623   (1896). 

18.  Finlayson  v.  Lipscomb,  16 
Fla.  751  (1878);  Schaefer  v.  Wun- 
derle, 154  111.  577  (1895);  A'aughan 
V.  Cutrer,  49  Miss.  782  (1874); 
Traphagen  v.  Voorhees,  45  X^.  J. 
E.  41  (1889);  Puryear  v.  Puryear, 
5  Baxt.  (Tenn.)  640  (1875);  Xor- 
folk Trust  Co.  v.  Foster,  78  Va. 
413  (1884);  and  see  cases  in  notes 
14  and  17,  ante. 

The  petition  and  affidavits  must 
state  in  detail  facts  and  circum- 
stances showing  the  nature  of  the 
evidence,  and  the  diligence  used 
in  discovering  the  facts;  a  naked 
averment  in  general  terms  is  insuf- 
ficient. Traphagen  v.  Voorhees,  45 
X.  J.  E.  41  (1889);  Page  v.  Holmes 
Co.,  2  Fed.  330  (C.  C.  1880). 

Counter  affidavits  are  admissible 
to  assist  the  court  in  determining 
the  preliminary  question  whether 
leave  to  file  should  be  granted. 
Austin,  etc.,  Bank  v.  Morrison,  133 
111.  App.  339  (1907);  Loth  v.  Loth, 
116  Mich.  634  (1898);  Boyer  v. 
Boyer,  77  X.  J.  E.  144  (1910); 
Society  of  Shakers  v.  Watson,  77 
Fed.  512,  23  C.  C.  A.  263  (1896); 
Blandy  v.  Griffith,  6  Fisher  Pat.  C. 
434  Fed.  Cas.  1.530  (1873).  In 
Society  of  Shakers  v.  Watson,  the 
CQunter  affidavits  were  allowed  by 
leave  of  court,  but  there  seems 
no  reasons  why  leave  should  be 
asked. 


BILLS  NOT  ORIGINAL 


287 


a  bill  of  review  for  newly  discovered  matter  rests  in  the 
discretion  of  the  court  entirely,  and  may  therefore  be 
refused,  although  the  facts  if  admitted  would  change  the 
decree,  when  the  court  in  view  of  all  the  circumstances 
deems  it  productive  of  mischief  to  innocent  parties,  or 
for  any  other  reason  inadvisable.^*^  So  also,  the  question 
of  the  time  of  filing  a  bill  of  review  for  new  matter  rests 
largely  in  the  discretion  of  the  court  under  all  the  circum- 


It  is  generally  held  that  the 
questions  whether  the  evidence  is 
really  newly  discovered,  and 
whether  the  party  bringing  the  bill 
was  duly  diligent  in  not  having 
discovered  it  in  time  to  bring  be- 
fore the  court  before  the  original 
final  decree  was  made,  are  to  be 
determined  on  the  application  for 
filing  the  bill,  and  not  upon  the 
hearing  on  the  bill  itself.  Dumont 
V.  Des  Moines  E.  Co.,  131  U.  S.  ap- 
pendix clx,  25  L.  ed.  520  (1879). 
Kelley  Bros.,  etc.,  Co.  v.  Diamond 
Drill,  etc.,  Co.,  142  Fed.  868,  aff.  147 
Fed.  71.3,  78  C.  C.  A.  101  (1906).  Ac- 
cordingly, the  Supreme  Court  will 
assume  that  sufficient  ground  for 
granting  leave  to  file  the  bill  was 
shown  to  the  lower  court.  Craig 
V.  Smith,  100  U.  S.  233,  25  L.  ed. 
580  (1879).  And  so  in  Virginia 
and  probably  in  Maryland.  Crau- 
ford's  Admr.  v.  Smith's  Exr.,  93 
Va.  623  (1896);  Hodges  v.  Mulli- 
kin,   1  Bland    (Md.)    503    (1822). 

But  in  McGuire  v.  Gallagher,  95 
Tenn.  349  (1895)  a  bill  of  review 
for  new  evidence  was  dismissed  on 
demurrer  after  the  court  had  per- 
mitted it  to  be  filed;  and  in  Pom- 
eroy  v.  Noud,  145  Mich.  37  (1906) 
a  bill  of  review  was  dismissed  at 
the  hearing,  though  leave  had  been 
given  for  filing  it,  when  no  new 
matter  not  originally  available 
was    offered,   the    court   basing   its 


decision  largely  on  public  policy; 
and  in  Traphagen  v.  Voorhees,  45 
N.  J.  E.  41  (1889)  it  was  stated 
that  all  such  facts  should  be  shown 
in  the  bill;  and  in  Dexter  v.  Ar- 
nold, 5  Mas.  303,  Fed.  Cas.  3,856 
(1829)  and  U.  S.  v.  Sampeyreac, 
Hempst.  118,  Fed.  Cas.  16,216  (Sup. 
Ct.  Ark.  T.  1831)  aff.  in  result  7 
Pet.  222,  8  L,  ed.  665,  that  such 
allegations  in  the  bill  may  be  trav- 
ersed by  answer  and  evidence; 
and  in  Elliott  v.  Balcom,  11  Gray 
(Mass.)  386  (1858)  that  the  find- 
ing of  facts  on  the  application  is 
not  conclusive  on  the  hearing  on 
the  bill. 

19.  Hughes  v.  Jones,  2  Md.  Ch. 
289  (1851);  Buck  v.  Buck,  195  Pa. 
373  (1900);  Eicker  v.  Powell,  100 
U.  S.  104,  25  L.  ed.  527  (1879); 
Acord  V.  Western,  etc..  Corpora- 
tion, 156  Fed.  989,  aff.  174  Fed. 
1019,  98  C.  C.  A.  625   (1907-9). 

The  discretion  of  the  lower  court 
in  allowing  or  refusing  a  bill  for 
new  evidence  will  not  generally  be 
revised  by  the  upper  court.  Safe, 
etc.,  Co.  v.  Gittings,  102  Md.  456, 
4  L.  E.  A.  (N.  S.)  865  (1906); 
Stoekley  v.  Stockley,  93  Mich.  307 
(1892);  Shaffer  v.  Shaffer,  51  W. 
Va.  126  (1902);  Craig  v.  Smith, 
100  U.  S.  233,  25  L.  ed.  580  (1879); 
see  Nickle  v.  Stewart,  111  U.  S. 
776,   28   L.   ed.   599    (1884). 


288 


EQUITY  PRACTICE 


stances  of  the  case.  A  neglect  to  file  the  bill  promptly 
after  discovery  of  the  new  matter  is  held  to  be  laches, 
but  as  to  lapse  of  time  after  decree  and  before  discovery, 
the  question  is  more  difficult,  though  where  a  long  period 
of  time  has  elapsed,  it  is  apt  to  have  great  weight  with 
the  court  in  refusing  the  application.-"' 

§  146.  — Parties,  filing,  etc.  It  is  a  rule  applicable  both 
to  bills  of  review  for  error  apparent  and  to  those  for  new 
matter,  that  generally  before  the  bill  can  be  brought, 
the  party  seeking  to  reverse  the  decree  must  perform  so 
much  of  the  decree  as  by  its  tenns  he  is  bound  to  perfonn 
at  that  time.^^    In  general,  no  persons  except  the  parties 


20.  The  cases  on  laches  in  filing 
run  closely  into  the  cases  on  dili- 
gence in  discovering,  see  note  14, 
ante,  p.  283.  The  following  cases, 
however,  seem  to  establish  the  point 
stated  in  the  text. 

Illinois.  Cole  v.  Burnap,  164  111. 
630  (1884);  Farwell  v.  Great,  etc., 
Tel.  Co.,  161  HI.  522  (1896),  bill 
of  review  for  fraud. 

Maryland.  Hitch  v.  Fenby,  4 
Md.   Ch.   190    (1850). 

Massachusetts.  Plymouth  v. 
Eussell  Mills,  7  All.  (Mass.)  438 
(1863),  bill  to  set  aside  an  award. 

Michigan.  Eq.  Eule  27;  Brown 
V.  Napper,  143  Mich.  636  (1906); 
Day  V.  Cole,  65  Mich.  154   (1887). 

New  Jersey.  Eiehards  v.  Shaw, 
77  N.  J.  E.  399  (1910). 

Pennsylvania.  Buck  v.  Buck, 
195   Pa.   373    (1900). 

Virginia.  Crauford  v.  Smith's 
Executor,   93   Va.    623    (1896). 

West  Virginia.  Bodkin  v.  Rol- 
lyson,  48  W.  Va.  453  (1900),  bill 
of  review  for  fraud. 

United  States.  Taylor  v. 
Easton,  180  Fed.  363  (1910);  Jor- 
genson  v.  Young,  136  Fed.  378,  69 
C.   C.   A.   222    (1905);   Hendryx   v. 


Perkins,  114  Fed.  801,  52  C.  C.  A. 
435  (1902),  bin  of  review  for  fraud; 
Boston,  etc.,  Co.  v.  Bemis,  etc., 
Co.,  98  Fed.  121,  38  C.  C.  A.  661 
(1899);  Tilghman  v.  Werk,  39  Fed. 
680   (1889). 

When  an  appeal  is  pending,  the 
time  of  pendency  of  the  appeal  is 
not  excluded  in  deciding  whether 
a  party  was  guilty  of  laches  in  not 
filing  his  bill  for  review  for  new 
evidence,  though  the  time  of  pen- 
dency of  the  appeal  is  not  counted 
in  the  time  which  is  allowed  a 
party  for  bringing  a  bill  for  error 
apparent  Buley  v.  Foley,  54  W. 
Va.  493   (1903)."^ 

In  Ehode  Island  apparently  a 
bill  of  review  for  new  evidence 
must  be  brought  within  one  year 
from  the  original  decree.  Wil- 
liams V.  Starkweather,  24  E.  I. 
512  (1902),  25  E.  I.  77  (1903); 
compare  Quinn  v.  Hall,  91  Atl.  71 
(E.  I.  1914). 

See  the  statutes  cited  in  note  11, 
ante,  p.  282. 

21.  Bruschke  v.  Nord,  etc.,  Ver- 
ein,  145  111.  433  (1893);  Kuttner  v. 
Haines,  135  111.  382  (1890);  Hoff- 
man v.  Pearson,  50  Fed.  484,  8  U.  S. 
App.   19    (1892);   Swan  v.  Wright, 


BILLS  NOT  ORIGINAL 


289 


and  their  privies  in  representation  such  as  heirs,  execu- 
tors and  administrators  can  have  a  bill  of  review  proper.-^ 


3  Woods  587,  Fed.  Cas.  13,670 
(1879),  bill  of  review  for  fraud. 

If  the  defendant  objects  that 
the  original  decree  has  not  been 
performed,  he  should  move  to 
strike  the  bill  from  the  files  or 
for  its  dismissal,  on  his  first  ap- 
pearance; if  he  demurs  or  answers, 
he  waives  the  objection.  Bruschke 
V.  Nord,  etc.,  Verein,  145  111.  433 
(1898). 

A  party  who  has  accepted  bene- 
fits under  a  decree  is  estopped 
from  reviewing  it.  Hill  v.  Phelps, 
101  Fed.  650,  41  C.  C.  A.  569  (1900). 

If  there  are  circumstances  mak- 
ing it  inequitable  that  a  party 
should  perform  the  original  decree 
before  bringing  his  bill  of  review, 
e.  g.  where  unable  to  pay  money, 
or  where  the  party  who  would  re- 
ceive it  is  insolvent,  the  party 
must  show  these  circumstances  to 
the  court  and  get  relief,  before  fil- 
ing his  bill  of  review.  Kuttner  v. 
Haines,  135  111.  382  (1890);  Griggs 
V.  Gear,  8  111.  2.  (1845);  Ricker  v. 
Powell,  100  U.  S.  (10  Otto)  104 
(1879). 

Giving  of  -security  for  perform- 
ance is  of  course  equivalent  to  per- 
forming. Fraenkl  v.  Cerecedo,  216 
U.  S.  295,  54  L.  ed.  486  (1910). 

Where  any  act  is  decreed  which 
extinguishes  the  parties'  rights  at 
common  law,  such  as  a  release,  ac- 
knowledgement of  satisfaction,  or 
cancellation,  it  is  held  that  those 
parts  of  the  decree  are  to  be  spared 
till  the  bill  of  review  is  decided. 
Massie  v.  Graham,  3  McLean  41, 
Fed.  Cas.   9,263    (1842). 

22.  Alabama.  Allgood  v.  Bank 
of  Piedmont,  130  Ala.  237  (1900); 
Whitehouse  E.  P.  Vol.  1—19 


Curry  v.  Peebles,  83  Ala.  225 
(1887). 

niinois.  Glos  v.  People,  102  N. 
E.  763  (111.  1913);  Goodrich  v. 
Thompson,  88  111.  206   (1878). 

Rhode  Island.  Doyle  v.  N.  Y., 
etc.,  Co.,  14  E.  I.  55    (1882). 

Tennessee.  Gilliland  v.  Cullum, 
6  Lea   (Tenn.)  521  (1880). 

Virginia.  Gibson  v.  Green's 
Admr.,  89  Va.  524,  37  Am.  St.  R. 
888   (1893). 

West  Virginia.  Chancellor  v. 
Spencer,  40   W.  Va.   337    (1895). 

United  States.  Thompson  v. 
Maxwell,  95  U.  S.  391,  24  L.  ed. 
481  (1877);  Poole  v.  Nixon,  9  Pet. 
App.  770,  Fed.  Cas.  11,270  (C.  C. 
1834). 

Persons  not  in  esse  but  repre- 
sented in  the  original  suit  may 
have  a  bill  of  review  on  coming 
into  being.  Wilson  v.  Schaefer, 
107  Tenn.  300  (1901). 

A  person  named  as  a  party,  al- 
though in  fact  he  has  no  interest, 
may  bring  a  bill  of  review  if  the 
court  has  not  found  that  he  lacks 
interest.  Glos  v.  People,  102  N.  E. 
763  (111.  1913).  But  the  dictum 
in  Paul  v.  Frierson,  21  Fla.  529 
(1885)  that  persons  not  parties 
but  interested  in  a  decree  may 
bring  a  bill  of  review  is  hardly 
correct. 

A  bill  of  review  cannot  bring  in 
new  parties  defendant.  Vaughan 
V.  Cutrer,  49  Miss.  782  (1874). 

Of  course,  persons  not  parties  to 
a  decree  may  bring  a  bill  in  the 
nature  of  a  bill  of  review  to  im- 
peach the  decree  upon  certain 
grounds.  Sec.  151,  post,  p.  295.  Such 
bills   are  often  loosely  called  bills 


290 


EQUITY  PRACTICE 


As  a  general  rule,  all  the  parties  to  the  original  bill  are 
necessar}^  parties  to  the  bill  of  review.^^  A  bill  of  review 
does  not  lie  to  review  a  decree  entered  by  consent,  unless 
by  a  clerical  error  something  has  been  inserted  therein 
as  by  consent  which  was  not  consented  to,  or  unless  con- 
sent was  obtained  by  fraud  or  mistake.-^  A  bill  of  review 
must  always  be  filed  in  the  court  which  rendered  the 
decree  -^  unless  its  control  over  the  case  has  been  divested 
by  appeal.-^  After  a  decision  has  been  rendered  by  an 
appellate  court,  the  court  below  has  no  authority  to  enter- 
tain a  bill  of  review  for  error  apparent,-'  but  in  most 


of  review,  e.  g.  in  Prince's  Admr. 
V.  McLemore,  108  Va.  269   (1908). 

Infants  are  allowed  in  some  ju- 
risdictions to  bring  a  bill  in  the 
nature  of  an  original  bill,  requir- 
ing no  leave  of  court,  upon  grounds 
which  would  at  most  justify  adult 
parties  in  bringing  a  bill  of  review 
for  newly  discovered  evidence. 
Grimes  v.  Grimes,  143  111.  550 
(1892);  Coffin  v.  Argo,  134  111.  276 
(1890);  Connolly  v.  Connolly,  32 
Grattan    (Va.)    657    (1880). 

But  in  Tennessee,  infants  have 
no  privileges  in  these  respects  over 
adults.  Hurt  v.  Long,  90  Tenn. 
445  (1891).  See  note  49,  post,  p. 
297. 

23.  Turner  v.  Berry,  8  111.  541 
(1846);  Glover  v.  Jones,  95  Me. 
353  (1901);  Barber  v.  Armistead, 
82  Miss.  788  (1903);  Friley  v.  Hen- 
dricks, 27  Miss.  412  (1854);  Bank 
V.  White,  8  Pet.  262   (1834). 

24.  Alabama.  Adler  v.  Van 
Kirk,  114  Ala.  551  (1896);  Curry 
V.  Peebles,  83  Ala.  225   (1887). 

Illinois.  Hohenadel  v.  Steele, 
237  111.  229  (1908);  Bonney  v. 
Lamb,   210  HI.  95    (1904). 

Massachusetts.  Evans  v.  Ham- 
lin,  164   Mass.   239   (1895),  semlle. 

Michigan.     Smith  v.  Smith,  142 


Mich.  413  (1905);  Ingles  v.  Bry- 
ant,   117   Mich.    113    (1898). 

Rhode  Island.  Bristol  v.  Bris- 
tol, etc.,  Waterworks,  19  E.  I.  631 
(1896),  25  E.  L  189   (1903). 

West  Virginia.  Seller  v.  Union 
Mfg.  Co.,  50  W.  Va.  208  (1901). 

United  States.  Thompson  v. 
Maxwell,  95  U.  S.  391,  24  L.  ed. 
481  (1877);  Kaw,  etc.,  Co.  v. 
Union,  etc.,'  E.  Co.,  163  Fed.  836 
(1908),  petition  treated  as  a  bill 
of  review. 

25.  Putnam  v.  Clark,  35  N.  J. 
E.  145  (1882);  Anderson  v.  Bank 
of  Tenn.,  5  Sneed  (Tenn.)  661 
(1858);  Slason  v.  Cannon,  19  Vt. 
219  (1847);  Sahlgard  v.  Kennedy, 
2  Fed.  295  (1880);  and  see  cases 
in    notes    26-31,   post. 

A  bill  of  review  will  not  lie  in 
a  Federal  court  to  review  the  de- 
cree of  a  state  court.  Graver  v. 
Faurot,  64  Fed.  241   (1894). 

26.  Dunfee  v.  Childs,  59  W.  Va. 
225  (1906);  Field  v.  Williamson, 
4  Sandf.  Ch.  (X.  Y.)  613  (1847). 

27.  Alabama.  Stallworth  v. 
Blum,  50  Ala.  46   (1873). 

Florida.  State  v.  White,  40  Fla. 
297   (1898). 

Illinois.  Hultberg  v.  Anderson, 
252  111.  607   (1912). 


BILLS  NOT  ORIGINAL 


291 


jurisdictions  can  entertain  a  bill  of  review  for  newly  dis- 
covered matter,  at  least  when  the  appellate  court  has 
given  a  petitioner  leave  to  file  such  bill.-^    In  some  juris- 


Maryland.  Pinkney  v.  Jay,  12 
G.   &  J.    (Md.)   69   (1841). 

Massachusetts.  Nashua,  etc., 
Corp.  V.  Boston,  etc.,  Corp.,  169 
Mass.  157  (1897). 

Tennessee.  Hurt  v.  Long,  90 
Tenn.  445    (1891). 

Virginia.  Campbell's  Exrs.  v. 
Campbell,   22   Gratt.   649    (1872). 

West  Virginia.  McLanahan  v. 
Mills,  80  S.  E.  351  (1913), 

United  States.  Southard  v.  Eus- 
sell,  16  How.  547,  14  L.  ed.  1052 
(1853);  Franklin,  etc.,  Bank  v. 
Taylor,  53  Fed.  854,  4  C.  C.  A.  55 
(1893). 

A  bill  of  review  for  error  ap- 
parent may  be  brought  in  the 
court  of  original  jurisdiction  with- 
out leave  of  the  upper  court,  when 
an  appeal  has  been  dismissed  by 
the  upper  court  for  want  of  prose- 
cution. Williamette,  etc.,  Co.  v. 
Hatch,  125  U.  S.  66,  31  L.  ed.  631 
(1888). 

28.  Florida.  State  v.  White,  40 
Fla.  297  (1898);  Bloxham  v.  Flor- 
ida, etc.,  E.  Co.,  39  Fla.  243  (1897). 
Illinois.  Schaefer  v.  Wunderle, 
154  HI.  577  (1895),  application  to 
upper  court  apparently  not  neces- 
sary. 

Maryland.  Safe,  etc.,  Co.  v. 
Gittings,  102  Md.  456,  4  L.  E.  A. 
(X.  S.)  865  (1906). 

Massachusetts.  Duffy  v.  Hogan, 
203  Mass.  397  (1909);  Crocker  v. 
Crocker,    198    Mass.    401    (1908). 

New  Jersey.  Putnam  v.  Clark, 
35  N.  J.  E.  145   (1882). 

Virginia.  Eeynolds  v.  Eeynold's 
Ex'r,  88  Va.  149   (1891). 

West   Virginia.      McLanahan    v. 


Mills,  80  S.  E.  351  (1913);  Sewing 
Machine  Co.  v.  Dunbar,  32  W.  Va. 
335    (1889),  semble. 

United  States.  Eeynolds  v. 
Florida,  etc.,  Co.,  42  Fla.  387 
(1900)  aff.  183  U.  S.  471,  46  L. 
ed.  283  (1902);  Southard  v.  Eus- 
sell,  57  U.  S.  (16  How.)  547,  14 
L.  ed.  1052   (1853). 

If  the  bill  is  filed  in  the  lower 
court  without  leave,  and  leave  is 
thereafter  asked  of  the  upper 
court,  the  bill  is  regarded  as  filed 
at  the  time  of  the  granting  of 
this  leave,  as  regards  the  lapse 
of  a  reasonable  time  between  dis- 
covery of  the  facts  and  bringing 
of  the  bill.  Camp  Mfg.  Co.  v. 
Parker,  121  Fed.  195  (1903). 

The  following  cases  hold  that 
the  original  court  cannot  enter- 
tain a  bill  of  review  for  new  mat- 
ter after  the  case  has  been  passed 
on  by  the  upper  court.  Eyerson 
v.  Eldred,  18  Mich.  490  (1869), 
semble;  Jewett  v.  Dringer,  31  N. 
J.  E.  586  (1879),  overruled;  Hurt 
v.  Long,  90  Tenn.  445  (1891), 
semble. 

A  party  who  has  not  appealed 
need  not  ask  leave  of  the  upper 
court  before  bringing  a  bill  of 
review  for  new  evidence.  Eieker 
V.  Powell,  100  U.  S.  104,  25  L. 
ed.  527   (1879). 

Where  an  application  is  neces- 
sary to  the  upper  court  before 
bringing  a  bill  for  new  evidence 
in  the  lower  court,  the  upper  court 
may  dispose  of  the  questions  of 
materiality  and  diligence  itself,  or 
leave  them  to  be  disposed  of  in 
the    lower    court.      Eubber    Co.    v. 


292 


EQUITY  PRACTICE 


dictions,  appellate  courts  will  review  their  own  decrees 
for  error  apparent,-^  but  an  appellate  court  can  not  enter- 
tain a  bill  of  review  for  newly  discovered  matter.^" 

§  147.  — Frajne.  A  bill  of  review  should  state  the  orig- 
inal bill  and  the  proceedings  thereon,  and  the  point  in 
which  the  party  bringing  the  bill  of  review  considers  him- 
self aggrieved  by  it,  and  the  error  of  law  or  new  matter  of 
fact  upon  which  he  seeks  to  impeach  it.^^    The  bill  may 


Goodyear,  9  Wall.  S05,  19  L.  ed. 
S2S  (1S70);  Kissinger-Ison  Co.  v. 
Bradford,  etc.,  Co.,  123  Fed.  91,  59 
C.  C.  A.  221  (1903);  Seymour  v. 
White  Co.,  92  Fed.  115  (1899). 

See  also  Hale  v.  Waddill,  78 
Miss.   16    (1900). 

29.  Matthias  v.  Matthias,  104 
111.  App.  3i4,  aff.  202  111.  125 
(.1903);  Karr  v.  Freeman,  166  111. 
299  (1897);  see  Murphy  v.  John- 
son, 107  Tenn.  5p2  (1901);  Hurt 
V.  Long,  90  Tenn.  445  (1891); 
Southard  v.  Bussell,  16  How.  547, 
14  L.  ed.  1052   (1853). 

Contra:  Cox  v.  Breedlove,  2 
Yerg.  (Tenn.)  499  (1831^. 

In  Massachusetts  it  has  been 
held  that  the  remedy  for  error  ap- 
parent in  a  decree  affirmed  by  the 
upper  court  and  not  subject  to  re- 
view by  original  bill,  is  by  petition 
for  rehearing  directed  to  the  up- 
per court.  Nashua,  etc.,  E.  Co.  v. 
Boston,  etc.,  E.  Co.,  169  Mass.  157 
(1897). 

30.  Byerson  v.  Eldred,  18  Mich. 
490  (1869);  and  see  cases  in  note 
29,  ante. 

31.  Florida.  Eeynolds  v.  Flor- 
ida, etc.,  R.  Co.,  42  Fla.  387,  aff. 
183  U.  S.  471,  46  L.  ed.  283  (1902). 

BCaine.  Glover  v.  Jones,  95  Me. 
353  (1901). 

Tennessee.  Wilson  v.  Schaefer, 
107   Tenn.   300    (1901). 


Virginia.  Whitten  v.  Saunders, 
75  Va.  563  (ISSl);  Hatcher's  v. 
Hatcher's,    77   Va.    600    (1883). 

West  Virginia.  Amiss  v.  Mc- 
Ginnis,   12   W.   Va.   371    (1878). 

No  errors  except  those  pointed 
out  in  the  bill  will  be  considered. 
McCall  V.  McCurdy,  69  Ala.  65, 
72    (1881). 

The  defendants  to  the  bill  should 
be  named  in  the  introduction  to 
the  bill.  Blondin  v.  McArthur,  84 
Vt.   516    (1911). 

Most  of  the  cases  indicate  that 
to  state  the  substance  of  the  pro- 
ceedings will  be  enough.  See 
cases  just  cited.  But  in  Massa- 
chusetts it  is  held  that  a  bill  of 
review  for  error  of  law  must  set 
out  in  full  the  pleadings,  proceed- 
ings and  final  decree,  but  not  the 
evidence.  Nashua,  etc.,  E.  Co.  v. 
Boston,  etc.,  E.  Co.,  169  Mass.  157 
(1897).  And  in  Illinois  it  is  set- 
tled that  the  bill  of  review  must 
contain  a  copy  of  the  former  bill, 
answer,  replication  and  decree, 
Lewis  V.  Topsico,  201  HI.  320 
(1903);  Bruschke  v.  Xord,  etc., 
Yerein,  145  HI.  433  (1893).  The 
bill  should  always  contain  in  haec 
xerha  the  important  parts  of  a 
writing  construed.  Goldsby  v. 
Goldsby,  67  Ala.  560  (1880).  A 
demurrer  will  lie,  if  the  bill  con- 
tains  the   evidence  in   the  former 


BILLS  NOT  ORIGINAL 


293 


pray  simply  that  the  decree  may  be  reviewed  and  reversed 
in  the  point  complained  of,  if  it  has  not  been  carried  into 
execution.  If  it  has  been  carried  into  execution,  the  bill 
may  also  pray  the  further  decree  of  the  court  to  put  the 
party  complaining  of  the  former  decree  into  the  situation 
in  which  he  would  have  been  if  that  decree  had  not  been 
executed.^2 

§  148.  — Defence.  The  proper  defence  to  a  bill  of  review 
for  error  of  law  apparent  is  by  demurrer ;  ^^  but  for  new 


suit.  Valz  V.  Coiner,  110  Va.  467 
(1909);  Buffington  v.  Harvey,  95 
U.  S.  99,  24  L.  ed.  381  (1877),  lu 
Kaw,  etc.  v.  Union,  etc.,  R.  Co., 
163  Fed.  836  (1908)  formal  defects 
were  disregarded,  and  a  so-called 
petition  was  treated  as  a  bill  of 
review. 

Where  the  bill  is  for  new  mat- 
ter, it  seems  necessary  to  allege 
that  the  bill  is  filed  by  leave  of 
court.  Cases  in  note  16,  ante,  p. 
285.  Whether  allegations  as  to 
knowledge  and  diligence  may  be 
omitted  depends  of  course  on 
whether  it  is  held  that  these  ques: 
tions  nxay  be  examined  on  the 
hearing  on  the  bill,  when  leave  to 
file  the  bill  has  been  given.  See 
cases  in  note  18,  ante,  p.  286. 

32.  McCall  V.  McCurdy,  69  Ala. 
65,  70   (1881). 

A  prayer  for  process  is  neces- 
sary, for  a  bill  of  review  is  a  bill 
in  itself,  and  not  a  mere  continu- 
ation of  another  bill.  Home,  etc., 
E.  Co.  V.  City,  162  Fed.  133  (1908), 
here  for  error  apparent;  Taylor 
V.  Easton,  180  Fed.  363  (1910),  here 
for  new  evidence. 

According  to  the  English  prac- 
tice, a  deposit  of  $250  with  the 
clerk  of  the  courts  is  required 
from  the  plaintiff  as  security  for 
costs    or    damage,    which    may    be 


awarded  the  defendant.  Some 
such  security  is  frequently  re- 
quired in  our  courts.  In  New 
York,  the  plaintiff  was  required 
to  give  the  security  required  on 
appeal.  Field  v.  Williamson,  4 
Sandf.  Ch.  (N.  Y.)  613  (1847).  So 
in  Michigan  and  New  Jersey. 
Michigan,  Eq.  Rule  27;  Quick  v. 
Lilly,  3  N.  J.  E.  255  (1835).  In 
the  Federal  courts,  the  court  may 
allow  a  deposit  to  be  made  nunc 
pro  tunc,  or  dispense  with  it  alto- 
gether, in  its  discretion.  Davis  v. 
Speiden,  104  U.  S.  83,  26  L.  ed. 
660  (1881);  Swan  v.  Wright,  3 
Woods  587,  Fed.  Cas.  13,670 
(1879).  Alabama  Code,  Sec.  3177 
permits  the  court  to  require  such 
bond  as  will  effectually  protect 
the  parties  interested  in  the  decree 
rendered,  where  a  decree  is  sus- 
pended pending  a  bill  of  review. 
By  Mississippi  Code,  Sec.  607  and 
Tennessee  Code,  Sees.  6307-8,  the 
court  may  stay  proceedings  and 
require  a  bond  to  be  given  pending 
the  review. 

33.  Florida.      Mattair    v.    Card, 
19  Fla.  455    (1882). 

Illinois.       Judson     v.     Stevens, 
75  111.  255   (1874). 

Maine.      Crooker    v.    Houghton, 

61   Me.    337    (1872). 


294  EQUITY  PRACTICE 

matter  it  may  be  by  demurrer  ^^  if,  for  example,  the  new 
matter  is  not  relevant,  or  by  plea  which  would  have 
avoided  the  efTect  of  the  new  matter  in  the  original  bill,^^ 
or  if  neither  of  these  grounds  are  open,  then  by  answer.^^ 

§  149.  Bills  of  review  with  revivor  or  supplement.  The 
bill  may  also,  if  the  original  suit  has  become  abated,  be 
at  the  same  time  a  bill  of  revivor.  Or  a  supplemental  bill 
may  likewise  be  added,  if  any  event  has  happened  which 
requires  it ;  and  particularly,  if  any  person  not  a  party  in 
the  original  suit  becomes  interested  in  the  subject,  he 
must  be  made  a  party  to  the  bill  of  review  by  way  of 
supplement.^^ 

§  150.  Bills  in  the  nature  of  bills  of  review.  As  has 
been  seen,  a  bill  of  review  strictly  so  called  could  in  the 
old  English  chancery  practice  be  filed  only  when  the 
decree  had  been  enrolled, ^^  In  the  English  practice, 
where  it  was  desired  to  take  advantage  of  any  new  matter 
discovered  after  the  decree  had  been  pronounced  and 
before  it  had  been  enrolled,  the  proper  mode  of  procedure 
was  by  a  bill  called  a  bill  in  the  nature  of  a  bill  of  review, 
based  on  newly  discovered  matter.^''    In  modem  practice, 

Virginia.      Valz    v.    Coiner,    110  36.  2    Dan.    Ch.    Pr.,     (6tli    Am. 

Va.  467   (1909).  ed.),  1854,  citing  Ld.  Red.  293. 

United  States.     Putnam  v.  Day,  37.  Whiting  v  Bank,  13  Pet.  13, 

22  Wall.  60,  22  L.  ed.  764   (1874);  10   L.   ed.   36    (1839). 

Aeord    v.    Western,    etc.,    Corpora-  38.  See  footnote  2,  ante,  p.  279; 

tion,    156   Fed.    989,   aff.    174   Fed.  Story's    Eq.    PI.    (10th    ed.),   Sees. 

1019,  98  C.  C.  A.  625  (1907-9).  403,   421,   citing   inter  alia:     Mitf. 

In  Copeland  v.  Pruning,  104  Fed.  Eq.    PI.   by   Jeremy,   83,   90;    Gilb. 

169     (1900)    a    bill    for    error    ap-  For.    Rom.    184,    185;    Cooper    Eq. 

parent    was    dismissed    on    motion  PI.  88;  Standish  v.  Radley,  2  Atk. 

because  filed  too  late,  but  the  court  178,  Wyatt,  Pr.  Reg.  96;  Smith  v. 

stated     that     a     demurrer     would  Clay,  3  Bro.  Ch.  by  Bait.  637  note, 

have    been    the    proper    proceeding  39.  Story's    Eq.    PI.     (10th    ed.) 

if   the    objection    appeared   on   the  Sec.  421,  citing  inter  alia:   Mitf.  Eq. 

face  of  the  bill,  otherwise  answer.  PL  by  Jeremy,  90,  91;  Cooper  Eq. 

34.  Lewis  v.  Topsico,  201  111.  PI.  89,  93;  Gilb.  For.  Rom.  183; 
320  (1903);  McGuire  v.  Gallagher,  Wyatt  Pr.  Reg.  96,  99";  Standish 
95  Tenn.  349   (1895).  v.    Radley,   2    Atk.    178;    Moore   v. 

35.  2  Dan.  Ch.  Pr.  (6th  Am.  ed.),  Moore,  2  Ves.  598;  Perry  v.  Phel- 
1584,  citing  Ld.  Red.  292.  ips,    17    Ves.     173,    176,    178.      It 


BILLS  NOT  ORIGINAL  295 

however,  the  decree  remains  within  the  power  of  the 
court  to  alter  on  motion  or  after  a  rehearing  at  any  time 
before  it  becomes  final,^*^  so  that  there  is  no  occasion  for 
a  bill  in  the  nature  of  a  bill  of  review  of  the  kind  just 
described,  whose  purpose  would  be  to  alter  the  decree 
between  the  time  when  the  decree  is  signed  and  when 
it  becomes  final.^^  In  modern  practice  the  phrase  ''bills 
in  the  nature  of  bills  of  review"  is  used  customarily  to 
describe  bills  in  the  nature  of  original  bills  to  impeach 
final  decrees  for  fraud,  accident  or  mistake,^-  whether  or 
not  brought  by  persons  not  entitled  to  bring  strict  bills 
of  review. 

§  151.  Bills  in  the  nature  of  review  to  impeach  decrees 
for  fraud,  accident,  or  mistake.  The  general  rule  is,  that 
a  final  decree  in  a  suit  which  has  gone  to  hearing  on  the 
merits,  cannot  be  impeached  or  vacated  except  by  a  bill 
or  review,  as  we  have  seen,  or  by  a  bill  in  the  nature  of 

seems  that  "bills  in  the  nature  of  a  bill  in  the  nature  of  a  bill  of 
bills  of  review,"  under  the  Eng-  review,  though  important  in  Eng- 
lish practice,  could  not  be  brought  land,  is  not  felt  in  the  practice  of 
for  error  apparent,  the  proper  pro-  the  courts  of  the  United  States 
cedure  in  such  cases  being  a  peti-  and  perhaps  rarely  in  any  of  the 
tion  for  a  rehearing.  Perry  v.  state  courts  of  equity  in  the 
Phelips,  17  Ves.  173;  Hodson  v.  Union.  I  take  it  to  be  clear,  that 
Ball,   1  Phill.   177,  180.  in  the  courts  of  the  United  States, 

40.  Tor  the  methods  in  modern  all  decrees  as  well  as  judgments 
practice  of  correcting  or  modify-  are  matters  of  record,  and  are 
ing  proposed  decrees  before  they  deemed  to  be  enrolled  as  of  the 
l>ecome  final,  see  Chap.  XXIII  "De-  term  in  which  they  are  passed,  so 
crees, "  Sees.  414-415,  pp.   658-659.  that  the  appropriate  remedy  is  by 

New   facts    arising   at   any   time  bill  of  review." 

before  .  decree    may    be    introduced  42.  See  Sec.  151,  post,  and  f oot- 

\<y  supplemental  bill.    Hardwick  v.  note  22,  ante,  p.  289.     The   differ- 

Am.     Can.     Co.,     115     Tenn.     398  ence  in  chancery  practice  between 

(1905).  bills    of    review    and    bills    in    the 

41.  In  Dexter  v.  Arnold,  5  Mas.  nature  of  review  is  discussed  in 
310,  Fed.  Cas.  3,856  (1829),  the  recent  code  state  case  of  Barz 
Judge  Story  said:  "This  distinc-  v.  Sawyer,  141  N.  W.  319  (la. 
tion  between  a  bill  of  review  and  1913). 


296 


EQUITY  PRACTICE 


an  original  ^^  bill  for  fraud.^"'  As  to  the  latter,  it  is  well 
settled  that  where  a  decree  has  been  obtained  by  fraud  or 
collusion  between  the  parties,  it  may  be  impeached  by  a 
formal  bill  for  that  purpose.^"^    So  where  the  consent  to  a 


43.  These  bills  are  original  bills 
in  every  respect  except  that  they 
relate  to  and  are  occasioned  by 
former  bills,  in  other  words,  they 
are  bills  in  the  nature  of  original 
bills  and  also  in  the  nature  of  bills 
of  review.  Since  they  are  for  most 
purposes  treated  as  original  bills, 
no  leave  is  required  before  filing 
(see  note  52,  post,  p.  298;  and  such 
a  bill  (unlike  a  pure  bill  of  re- 
view) may  be  brought  in  the 
lower  court  while  an  appeal  from 
the  decree  complained  of  is  pend- 
ing above.  Dowagiae,  etc.,  Co.  v. 
McShery,  etc.,  Co.,  155  Fed.  524,  84 
C.  C.  A.  38  (1907). 

Although  in  most  jurisdictions  a 
strict  bill  of  rfeview  cannot  be 
brought  to  set  aside  a  decree  ob- 
tained by  fraud.  Law  v.  Law, 
55  W.  Va.  4  (1904),  yet  in  New 
Jersey  there  seems  to  be  authority 
to  the  contrary.  Kearns  v. 
Kearns,  70  N.  J.  E.  483  (1905); 
Watkinson  v.  Watkinson,  68  N.  J. 
E.  632,  69  L,  E.  A.     397   (1905). 

It  is  said  in  Berdanatti  v.  Sex- 
ton, 2  Tenn.  Ch.  699,  704  (1877) 
that  the  difference  between  a  bill 
to  vacate  a  decree  for  fraud  and 
a  pure  bill  of  review  lies  in  their 
purpose;  the  object  and  effect  of 
the  first  being  to  vacate  the  former 
decree  entirely,  of-  the  latter  to 
reverse  it  so  far  as  it  is  erroneous 
and  get  a  new  trial  either  on  the 
original  record  or  on  that  plus 
newly   discovered  evidence 

44.  Accordingly,  in  the  absence 
of  statutes,  a  motion  or  petition 
to  vacate  a  final  decree  because  of 


fraud  will  be  denied.  Stribling  v. 
Hart,  20  Fla.  235  (1883);  Ernst, 
etc.,  Co.  V.  Koehler,  200  111.  369, 
636  (1902);  Thruston  v.  Devecmon, 
30  Md.  210  (1868);  Herbert  v. 
Eowles,  30  Md.  271  (1868);  Lakiu 
V.  Lawrence,  195  Mass.  27  (1907); 
Low  V.  Mills,  61  Mich.  35  (1886), 
dictum  that  if  no  party  has  ap- 
peared, a  petition  or  motion  is  suffi- 
cient to  open  the  decree  against 
him. 

In  U.  S.  V.  Williams,  67  Fed. 
384  (1895),  however,  a  decree 
seems  to  have  been  vacated  for 
fraud,  after  the  term,  on  simple 
motion. 

A  bill  of  review  erroneously 
brought  for  fraud  may  be  amended 
into  an  original  bill  for  fraud. 
Law  V.  Law,  55  W.  A^a.  4   (1904). 

45.  Illinois.  Farwell  v.  Great, 
etc.,  Tel.   Co.,   161   111.   522    (1896). 

Michigan.  Kinsel  v.  Kinsel,  126 
Mich.  693  (1901);  Adair  v.  Cum- 
mings,  48   Mich.   375    (1882). 

New  Jersey.  Whittemore  v. 
Coster,  4  N.  J.  E.  438   (1844). 

Pennsylvania.  Walker  v.  Day, 
8   Baxt.    (Tenn.)    77    (1874). 

Virginia.  Penn  v.  Tucker,  114 
Va.   669    (1913). 

United  States.  Pacific  E.  Co.  v. 
Missouri  Pacific  E.  Co.,  Ill  U.  S. 
505,  28  L.  ed.  498  (1884);  Dowag- 
iae, etc.,  Co.  V.  McShery,  etc.,  Co., 
355  Fed.  524,  84  C.  C.  A.  38  (1907) ; 
Graves  v.  Faurot,  76  Fed.  257,  46 
C.   C.  A.  268   (1896). 

The  fraud  on  which  the  bill  is 
based  must  be  extrinsic  to  the  is- 
sues   raised    in    the    original    suit. 


BILLS  NOT  ORIGINAL 


297 


consent  decree  has  been  fraudulently  obtained,  sucli  a  bill 
is  the  proper  remedy.^^  By  exception  to  the  general  rule, 
an  improper  decree  obtained  against  an  infant  ■*'  or 
lunatic, ^^  even  though  not  obtained  by  fraud,  may  be 
impeached  by  bill  in  the  nature  of  original  bill,  even 
during  the  minority  of  the  infant.^^  When  a  suit  has  not 
been  heard  on  the  merits,  as  for  instance  where  the  decree 
is  based  on  the  default  of  a  defendant,  a  decree  obtained 
not  by  fraud,  but  merely  by  surprise,  accident  or  mistake, 
or  which  is  manifestly  unjust,  may  be  impeached  by  a 
bill  in  the  nature  of  an  original  bill  for  that  purpose,'^*^ 


Bodkin  v.  Eollyson,  48  W.  Va.  453 
(1900);  Pittsburg,  etc.,  R.  Co.  v. 
Keokuk,  etc.,  Co.,  107  Fed.  781 
(1901). 

The  fraud  must  be  such  that 
its  effect  was  successful  in  bring- 
ing about  a  result  which  would 
not  otherwise  have  been  reached — 
the  fraud  must  not  relate  simply 
to  some  cumulative  matter.  Boy- 
den  V.  Eeed,  55  111.  458  (1870); 
Moody  V.  Farr,  27  Miss.  788 
(1854) ;  Dringer  v.  Receiver,  42 
N.  J.  E.  573  (1887);  Kimberley  v. 
Arms,  40  Fed.  548  (1889). 

46.  Hohenadel  v.  Steele,  237  111. 
229  (1908),  semhle  (here  on  a 
petition  the  court  would  not 
modify  a  consent  decree);  Prince's 
Admr.  v.  McLemore,  108  Va.  269 
(1908),  semhle  (here  bill  allowed 
in  favor  of  an  assignee  to  cor- 
rect consent  decree  obtained  by  ac- 
cident and  mistake  though  without 
fraud) ;  Seller  v.  Union  Mfg.  Co., 
50  W.  Va.  208  (1901),  semble  (here 
in  the  absence  of  fraud,  accident 
or  mistake  court  refused  to  modify 
a  consent  decree). 

47.  Grimes  v.  Grimes,  143  111. 
550  (1892) ;  CoflSn  v.  Argo,  134  111. 
276  (1890);  Connolly  v.  Connolly, 
32    Gratt.    (Va.)    657    (1880);    see 


Plant  V.  Humphries,  66  W.  Va.  88 
(1909). 

Contra,  Hurt  v.  Long,  9(J  Tenn. 
445   (1891). 

In  Mississippi  it  was  held  in 
Mayo  V.  Clancy,  57  Miss.  674 
(1880)  that  a  statute  permitting 
an  infant  within  a  year  after 
reaching  his  majority  to  attack  by 
original  bill  a  decree  obtained 
against  him  during  his  minority, 
by  alleging  evidence  disclosing  er- 
rors, leaves  the  infant  no  special 
rights  after  the  lapse  of  that  year, 
although  the  fact  of  infancy  of 
course  has  a  bearing  on  the  ques- 
tion of  whether  any  fraud  was 
actually  practiced  on  him,  in  case 
he  brings  a  bill  to  set  aside  the 
decree  for  fraud. 

48.  Sheldon  v.  Fortescue,  3  P. 
Wnis.  110. 

49.  Grimes  v.  Grimes,  143  HI. 
550  (1892).  But  it  seems  that 
laches  cannot  be  imputed  to  the 
infant  during  his  minority. 
Campau  v.  Van  Dyke,  15  Mich. 
371  (1867),  bill  dismissed  for 
laches  after  reaching  majority. 

50.  Illinois.  Harper  v.  Mangel, 
98  111.  App.  526  (1901);  McDaniel 
V.  James,  23  111.  407    (1860). 

Maine.     Fogg  v.  Merrill,  74  Me. 


298 


EQUITY  PRACTICE 


although  relief  in  such  cases  is  more  commonly  obtained 
on  petition  of  the  injured  person.^^ 

A  bill  to  impeach  a  decree  for  fraud  may  be  filed  with- 
out leave  of  court, ■^-  but  must  be  filed  within  a  reasonable 


523  (1883);  Bailey  v.  Merchants 
Ins.  Co.,  86  Atl.  328  (Me.  1913). 

New  Jersey.  Boyer  v.  Boyer, 
77  X.  J.  E.  144  (1910),  sembh. 

Tennessee.  Murphy  v.  Johnson, 
107  Tenu.  552   (1901). 

Virginia.  Penn  v.  Tucker,  77 
Va.  473  (1913);  Anderson  v.  Wood- 
ford, 8  Leigh   (Ya.)   316   (1839). 

West  Virginia.  Camden  v.  Fer- 
rell,  50  W.  Va.  119  (1901). 

United  States.  Perkins  v.  Hen- 
dryx,  149  Fed.  526  (1906);  Dewey 
v.'stratton,  114  Fed.  179,  52  C.  C. 
A.  135  (1902);  contra,  Hendryx  v. 
Perkins,  114  Fed.  801,  52  C.  C.  A. 
435  (1902),  dictum  of  two  judges, 
one  dissenting,  actual  decision 
based  on  laches.  "See  also  Acord 
V.  Western,  etc.,  Corp.,  156  Fed. 
9S9,  aff.  174  Fed.  1019,  98  C.  C.  A. 
625    (1907-9). 

The  bill  does  not  lie  when  the 
injured  party  has  allowed  the  mis- 
take to  happen  through  his  own 
negligence  or  laches.  Macfarlane 
V.  Dorsey,  49  Fla.  341  (1905); 
Fellers  v.  Ramsay,  82  111.  114 
(1876);  Xelson's  Admr.  v.  Kowns- 
lar's  Executor,  79  Va.  468  (1S84), 
petition;  Hill  v.  Bowyer,  IS  Gratt. 
(Va.)  364  (1868),  here  negligence 
prevented  relief  against  a  decree 
which  was  stated  to  be  "grossly 
unjust. ' ' 

Evidence  that  the  injured  party 
had  a  meritorious  defence  must  be 
submitted  to  the  court.  Macfar- 
lane V.  Dorsey,  49  Fla.  341   (1905). 

A  bill  may  be  brought,  even 
•where  a  petition  has  been  denied. 


Hill  V.  Bowyer,  18  Gratt.  (Va.)  364 
(1868;. 

The  Illinois  statute  providing 
that  a  defendant  against  whom  a 
final  decree  is  entered  in  a  suit  in 
which  he  was  not  summoned  or 
served  shall  within  one  year  after 
notice  of  the  entry  or  otherwise 
within  three  years  appear  and 
petition  for  the  decree  to  be 
opened  does  not  exclude  a  remedy 
by  bill  in  equity,  after  the  three 
years,  when  a  false  indorsement 
of  return  was  made  upon  a  writ, 
and  actually  it  was  never  served. 
Harper  v.  Mangel,  98  111.  App.  526 
(1901). 

51.  See  Ch.  IX  ("Pro  Con- 
fesso");  Sec.  197,  post,  p.  376;  Ch. 
XXIII,  "Decrees,"  Sees.  414,  415, 
416,  pp.  658,  et  seq. 

52.  Alabama.  McDonald  v. 
Pearson,  114  Ala.  630,  647   (1896). 

Illinois.  Farwell  v.  Great,  etc., 
Tel.  Co..  161  111.  522   (1896). 

Massachusetts.  Evans  v.  Bacon, 
99  Mass.  213   (1S6S). 

Tennessee.  Haskins  v.  Eose,  2 
Lea  (Tenn.)   708   (1879). 

Virginia.  Hill  v.  Bowyer,  18 
Gratt.    (Va.)    364    (1868). 

United  States.  Dowagiac,  etc., 
Co.  V.  MeShery,  etc.,  Co.,  155  Fed. 
524,  84  C.  C.  A.  38  (1907);  Ritchie 
V.  Burke,  109  Fed.  16  (1901),  here 
the  court  of  appeals  had  the  or- 
iginal action,  but  nevertheless  the 
bill  lay  without  leave. 

But  see  Watkinson  v.  Watkin- 
son,  68  X.  J.  Eq.  632,  69  L.  R.  A. 
397  (1905),  reversing  67  X.  J.  E. 
142. 


BILLS  NOT  ORIGINAL 


299 


time  ^^  and  must  apparently  be  verified  by  affidavit,^*  as 
in  the  case  of  bills  of  review  for  new  matter.  The  bill 
must  state  the  decree  and  the  proceedings  which  led  to 
it,  and  allege  fully  the  circumstances  of  the  fraud  or 
other  ground  relied  upon  and  show  that  but  for  the  fraud 
or  other  ground  there  would  have  been  no  decree.^^  The 
prayer  is  usually  that  the  decree  may  be  vacated  and 
the  parties  restored  to  their  original  situation,^^  But  in 
some  cases,  relief  by  varying  the  decree  ^'  or  further  relief 
of  an  affirmative  nature  may  be  prayed  for  and  granted. 

§  152.  Bills  for  relief  against  judgments.^^    It  is  well 
settled  that  a  bill  in  equity  will  lie  to  relieve  against  a 


Leave  must  be  asked  if  the  bill 
also  asks  review  on  the  ground  of 
new  evidence.  Harrigan  v.  Peo- 
ria Co.^  104  N.  E.  172   (111.   1913). 

53.  Alabama.  Gordon  v.  Eoss, 
63    Ala.    363    (1879). 

Illinois.  Bruschke  v.  Nord,  etc., 
Verein,  145  III.  433   (1893). 

Massachusetts.  Evans  v.  Bacon, 
99  Mass.  213   (1868). 

Michigan.  Campau  v.  Van 
Dyke,  15  Mich.  371   (1867). 

West  Virginia.  Seymour  v.  Al- 
kire,  47  W.  Va.  302   (1899). 

United  States.  Perkins  v.  Hen- 
dryx,  149  Fed.  526  (C.  C.  1906); 
Hendryx  v.  Perkins,  114  Fed.  179, 
52  C.  C.  A.  435  (1902);  Dewey  v. 
Stratton,  114  Fed.  179,  52  C.  C.  A. 
135   (1902). 

The  existence  of  a  trust  relation 
will  excuse  a  person  from  exercis- 
ing unusual  diligence  in  investi- 
gating whether  the  acts  of  the 
trustees  are  fraudulent;  where 
beneficiary  has  nothing  to  put  him 
on  inquiry  until  one  month  before 
filing  his  bill,  he  is  not  guilty  of 
laches.  Farwell  v.  Great,  etc.,  Tel. 
Co.,  161  111.  522   (1896). 

54.  Brick  v.  Burr,  47  N.  J.  Eq. 


189     (1890),    semble    (here    a    bill 
for  relief  against  a  judgment). 

55.  Harrigan  v.  Peoria  Co.,  104 
N.  E.  172  (111.  1913);  Dringer  v. 
Eeceiver,  42  N.  J.  Eq.  189  (1887); 
Pittsburg,  etc.,  R.  Co.  v.  Keokuk, 
etc.,  R.  Co.,  107  Fed.  781,  46  C.  C. 
A.  639,  109  Fed.  279,  48  C.  C.  A. 
362   (1901). 

Where  the  bill  is  for  relief  from 
accident,  surprise  or  mistake,  it 
must  show  that  the  defendant  was 
bo7m  fide,  diligent,  and  had  a 
meritorious  defence,  and  the  an- 
swer which  he  proposes  to  file 
should  be  exhibited.  Macfarlane, 
V.  Dorsey,  49  Fla.  341   (1905). 

The  plaintiff  must  of  course 
make  out  a  clear  case  in  his  own 
favor.  Vanpelt  v.  Hutchinson,  114 
111.  435  (1885).  But  he  need  not 
allege  performance  of  the  original 
decree.  Powers  v.  Scales,  61  Fla. 
717    (1911). 

56.  Osborne  v.  Air  Line  E.  Co., 
2  Flip.  503,  F.  C.  10,594  (1879). 

57.  Manaton  v.  Molesworth,  1 
Eden  18. 

58.  Bills  to  enjoin  or  set  aside 
judgments  at  law  come  under  the 
jurisdiction      of      equity      on      the 


300 


EQUITY  PRACTICE 


judgment  at  law  on  any  ground  which  clearly  proves  it 
to  be  against  conscience  to  execute  such  judgment,  and 
of  which  the  injured  party  could  not  have  availed  himself 
in  a  court  of  law,  or  of  which  he  might  have  availed  him- 
self at  law,  but  was  prevented  by  fraud,  accident  or 
mistake  without  fault  on  his  part  or  that  of  his  agents.^^ 


grouud  of  fraud,  accident  and  mis- 
take, yet  in  their  nature  and  struc- 
ture they  are  somewhat  different 
from  the  common  original  bill,  and 
resemble  bills  to  impeach  decrees; 
they  therefore  require  special  dis- 
cussion in  any  book  of  equity 
pleading  and  practice,  and  are  ap- 
propriately considered  in  connec- 
tion with  those  bills  which  they 
most  closely  resemble  in  purpose 
and  frame. 

59.  In  the  following  cases,  relief 
was  given: 

Delaware.  Emerson  v.  Gray,  63 
Atl.  768  (Del.  1906). 

Florida.  King  v.  Dekle,  53  Fla. 
940   (1907). 

Illinois.  Schroer  v.  Pettibone, 
163  111.  42  (1896);  Hilt  v.  Heim- 
berger,    140   111.    App.    129    (1908). 

Maryland.  Horner  v.  Popplein, 
112   Md.  591    (1910). 

Massachusetts.  Brooks         v. 

Twitchell,  182  Mass.  443,  94  Am. 
St.  Eep.  662   (1903). 

Michigan.  Babcock  v.  Babcock, 
150  Mich.  558  (1907);  Edson  v. 
Cummings,   52   Mich.   52    (1883). 

Mississippi.  Bergman  v.  Hutch- 
eson,   60   Miss.   872    (1883). 

New  Hampshire.  Hibbard  v. 
Eastman,  47  N.  H.  507  (1867); 
Wingate  v.  Haywood,  40  N.  H. 
437   (1860). 

New  Jersey.  Atlantic  City  E. 
Co.  V.  Johanson,  72  N.  J.  E.  332 
(1907);  Herbert  v.  Herbert,  49  N. 
J.  E.  566   (1892). 


Pennsylvania.  York  Co.  v. 
Thompson,  212  Pa.  561  (1905), 
petition. 

Vermont.  Weed  v.  Hunt,  76  Vt. 
212  (1904);  Scoville  v.  Brock,  76 
Vt.  385  (1904) ;  Delaney  v.  Brown, 
72  Vt.  344   (1900). 

Virginia.  Thomas  v.  Jones,  98 
Va.  323  (1900);  Holland  v.  Trot- 
ter, 22   Gratt.   136   (1872). 

United  States.  King  v.  Davis, 
137  Fed.  222,  aff.  157  Fed.  676,  85  C. 
C.  A.  348  (1905);  National  Surety 
Co.  V.  State  Bank,  120  Fed.  593,  56 
C.  C.  A.  657,  61  L.  E.  A.  394  (1903) ; 
Perry  v.  Johnston,  95  Fed.  322 
(1899);  Hamburg,  etc.,  Co.  v.  Pel- 
zer,  etc.,  Co.,  76  Fed.  479,  22  C.  C. 
A.  283,  aff.  71  Fed.  826   (1896). 

Simple  and  efficient  methods 
which  obviate  the  need  of  a  bill 
in  equity  to  overcome  the  effect 
of  erroneous  judgments  are  now 
provided  by  statute  in  many 
states,  so  that  there  is  far  less 
need  than  formerly  for  equitable 
relief.  But  these  statutes  do  not 
oust  the  well  established  jurisdic- 
tion of  equity  in  such  cases.  See 
National  Surety  Company  v.  State 
Bank,  120  Fed.  593,  56  C.  C.  A.  657, 
61  L.  E.  A.  394  (1903)  but  com- 
pare Travelers,  etc..  Association  v. 
Gilbert,  111  Fed.  269,  49  C.  C.  A. 
309,  55  L.  E.  A.  538  (1901).  In 
the  latter  of  these  cases  a  Federal 
court  refused  relief  in  equity, 
where  the  agent  and  employe  of 
a    corporation    failed     (apparently 


BILLS  NOT  ORIGINAL 


301 


Belief  will  be  refused,  however,  when  the  plaintiff  in 
equity  was  not  diligent  in  availing  himself  of  his  reme- 
dies; ''^'^  or  when  he  does  not  show  that  the  fraud,  accident 


through  a  mistake  of  law)  to 
notify  his  corporation  of  service 
of  the  writ  upon  him,  and  judg- 
ment was  taken  against  the  cor- 
poration, the  state  statutes  giving 
a  right  to  proceed  in  the  state 
court  to  vacate  judgments  for 
fraud,  and  it  not  appearing  plainly 
that  there  was  any  fraud,  or  that 
the  corporation  had  a  good  de- 
fence. In  the  other  case,  a  bill 
was  sustained,  where  the  state 
auditor  of  public  accounts,  upon 
whom  by  statute  service  might  be 
made  to  bind  the  corporation, 
failed  to  notify  it  of  service,  the 
bill  stating  that  the  corporation 
had  a  good  defence;  although 
there  was  a  state  statute  similar 
to  the  one  in  the  other  case.  In 
Hayes  v.  United  States,  etc.,  Co., 
65  N.  J.  E.  5  (1903),  the  court  in 
sustaining  a  demurrer  to  a  bill  to 
set  aside  a  judgment  for  new  evi- 
dence discovered  after  the  trial, 
intimates  that  the  existence  of  a 
statute  allowing  new  trials  at  law 
after  the  term  influenced  the  de- 
cision of  the  court. 

A  rather  unusual  case  is  Graf- 
ton, etc.,  E.  Co.  V.  Davison,  45  W. 
Va.  12  (1898),  where  a  bill  was 
allowed,  where  the  judge  of  the 
law  court  had  died  without  sign- 
ing exceptions.  The  court  said  it 
could  not  act  directly  on  the  law 
court,  but  could  direct  an  issue  to 
be  tried  at  its  own  bar,  and  by  the 
result  of  this  trial  perpetuate  or 
dissolve  the  injunction  against  the 
judgment. 

59a.  Florida.  Peacock  v.  Fes- 
ter, 52  Fla.  565  (1906). 


Illinois.  Deadman  v.  Tantes, 
230  111,  243  (1907),  ten  years'  de- 
lay in  bringing  bill;  Kretchman  v. 
Euprecht,  230  111.  492,  (1907); 
Evans  v.  Woodsworth,  213  111.  404 
(1904),  laches  apparent  by  the  bill 
itself. 

Maryland,  Hilton  v.  Tyrrel,  93 
Md.  657   (1901). 

Michigan.  Farmers',  etc.,  Co.  v. 
Johnston,  113  Mich.  426  (1897). 
But  in  Wilcke  v.  Duress,  44  Mich. 
243,  115  Am.  St.  Eep.  394  (1906)  a 
defendant  who  by  mistake  was  not 
served,  but  who  knew  of  the  action 
against  him,  and  allowed  it  to  go 
to  judgment,  was  allowed  to  set 
aside  the  judgment  by  bill  in 
equity,  upon  showing  a  good  de- 
fence, although  the  court  cut  down 
the  costs,  allowing  only  disburse- 
ments in  bringing  the  bill,  and  no 
attorney  fee. 

Mississippi.  Woods  v.  Chesbor- 
ough,  95  Miss.  63  (1909),  delay  of 
31/^  years  in  filing  bill. 

New  Hampshire.  Eeed  v.  Pres- 
cott,  70  N.  H.  88   (1900).' 

New  Jersey.  Hayes  v.  United 
States,  etc.,  Co.,  65  N.  J.  E.  5 
(1903),  bill  to  set  aside  judgment 
for  new  evidence. 

Rhode  Island.  Tyrrell  v.  Wood, 
68   Atl.  545    (E.   I.   1908). 

Vermont.  Weed  v.  Hunt,  81  Vt. 
302    (1908). 

Virginia.  Canada  v.  Barksdale, 
84  Va.  742   (1883). 

West  Virginia.  Hall  v.  Mc- 
Gregor, 65  W.  Va.  74  (1909);  Zinn 
V.  Dawson,  47  W.  Va.  45,  81  A.  S. 
E.  722  (1899),  here  the  defendant 
in  the  bill  in  equity  was  insolvent. 


302 


EQUITY  PRACTICE 


or  mistake  was  the  direct  cause  of  injustice  to  himself, 
as  for  instance  where  it  does  not  appear  that  he  had  a 
good  defence  to  the  original  cause  of  action  in  which  the 
judgment  was  taken  against  him;^^*^  or  where  the  fraud 
was  not  extrinsic  to  the  issues  raised  in  the  original  con- 
troversy; ^^^  or  where  the  original  judgment  is  complained 


United  States.  Brown  v.  Buena 
Vista  Co.,  95  U.  S.  157,  24  L.  ed. 
422  (1877);  Harwood  v.  Cincin- 
nati, etc.,  R.  Co.,  17  Wall.  78 
(1872). 

In  Williams  v.  Pile,  104  Tenn. 
273  (1900),  however,  it  was  held 
that  an  equity  court  could  inter- 
fere against  a  judgment  obtained 
by  fraud,  accident  or  mistake,  even 
though  the  injured  party  had  a 
right  to  proceed  by  writ  of  error 
in  the  court  of  law. 

59b.  nUnois.  Cadillac,  etc.,  Co. 
V.  Boynton,  240  111.  171   (1909). 

Maryland.  Maryland  Steel  Co. 
V.   Marney,  91  Md.  360   (1900). 

MicMgan.  Anglewicz  v.  Freda, 
150   Mich.   634   (1907). 

New  Jersey.  First  Baptist 
Church  V.  Syms,  51  X.  J.  E.  363 
(1893). 

Rhode  Island.  Opie  v.  Clancy, 
27  R.  I.  42  (1905). 

West  Virginia.  Longdale  Iron 
Co.  V.  Quesenbery,  50  W.  Va.  451 
(1901). 

United  States.  Knox  Co.  v. 
Hirshman,  133  U.  S.  152,  24  L.  ed. 
422  (1890);  White  v.  Crow,  110 
U.  S  183,  28  L.  ed.  113  (1884); 
Allen  v.  Allen,  97  Fed.  525,  38  C. 
C.  A.  336  (1899),  here  it  did  not 
appear  that  a  result  unjust  to  the 
plaintiff  in  equity  was  produced. 

59c.  Consequently  if  the  fraud  re- 
lates to  a  point  which  was  in  issue 
either  at  the  original  trial  on  the 
merits,   or  upon   a   subsequent   mo- 


tion for  a  new  trial,  or  if  some 
opportunity  existed  to  present  the 
fact  of  fraud  in  the  legal  proceed- 
ings, then  equity  will  decline  to 
act. 

Illinois.  Telford  v.  Brinckerhof, 
163  111.  439   (1896). 

Maine.  Aetna  Life  Ins.  Co.  v. 
Tremblay,  101  Me.  585  (1906), 
equitable  defence  available  at 
trial  in  court  of  law. 

Maryland.  Maryland  Steel  Co. 
v.  Marney,  91  Md.   360   (1900). 

MicMgan.  Steele  v.  Culver,  157 
Mich.  344   (1909). 

Mississippi.  Sintes  v.  Barber,  78 
Miss.  585  (1901),  scmble.  here 
equitable  defence  available  at 
trial  in  court  of  law. 

New  Jersey.  Wilson  v.  An- 
thony, 72  X.  J.  E.  836   (1907). 

Rhode  Island,  Opie  v.  Clancy, 
27  R.  I.  42   (1905). 

Tennessee.  Keith  v.  Alger,  114 
Tenn.  1   (1905). 

Vermont.  French  v.  Raymond, 
82  Vt.   156   (1909). 

Virginia.  Hoge  v.  Fidelity,  etc., 
Co.,  103  Va.  1  (1904),  equitable 
defence  available  at  trial  in  court 
of  law. 

West  Virginia.  Farmers',  etc., 
Co.  V.  Pridemore,  55  W.  Va.  451 
(1904),  compare  dictum  in  Bias  v. 
Vickers,  27  W.  Va.  456  (1886)  as 
to  equitable  defence  available  at 
law. 

United  States.  United  States  v. 
Throckmorton    98    U.   S.    61,    25   L. 


BILLS  NOT  ORIGLNAL 


303 


of  for  irregularity  of  proceedings,  erroneous  rulings  of 
law,  or  indeed  for  any  cause  except  fraud,  accident,  sur- 
prise or  mistake.^^*^ 

The  bill  is  an  original  bill  similar  in  nearly  all 
respects  to  a  bill  to  impeach  a  decree.  The  difference 
is,  that  the  latter  bill  seeks  to  reverse  the  proceedings  of 
the  court  and  vacate  the  decree  directly,  while  the  former 
acts  only  m  personam  and  nullifies  the  judgment 
indirectly  by  preventing  the  person  who  has  wrongfully 
obtained  the  judgment  from  taking  advantage  of  it,  since 
a  court  of  equity  has  no  power  to  control  the  proceedings 
or  vacate  the  judgments  of  a  court  of  law.*^*^    The  bill  must 


ed.  593  (1878);  Holton  v.  Davis, 
108  Fed.  138,  47  C.  C.  A.  246  (1901) ; 
United  States  v.  Beebe,  92  Fed.  244, 

34  C.  C.  A,  321  (1899)  reversed 
on  other  grounds,  180  U.  S.  343, 
45  L.  ed.  563. 

It  seems  that  in  Ehode  Island 
and  Tennessee,  equity  will  not  re- 
lieve against  a  judgment  unless 
there  was  actual  fraud,  not  merely 
a  mistake.  Opie  v.  Clancy,  27  R. 
I.  42  (1905);  Turley  v.  Taylor,  65 
Tenn.   (6  Baxt.)   394  (1873). 

59d.  Illinois.  Klinesmith  v.  Van. 
Bramer,   104  111.   App.   384    (1902).  , 

Michigan.  Valley  City  Desk  Co. 
v.  Travelers  Insurance  Co.,  143 
Mich.   468    (1906). 

Mississippi.  Benton  v.  Crowder, 
15  Miss.   (7  Sm.  &  M.)   185   (1846). 

New    Jersey.      Cutter    v.    Kline, 

35  N.  J.  E.  534  (1882),  with  note 
citing  eases. 

West  Virginia.  Harner  v.  Price, 
17  W.  Va.  523    (1880). 

United  States.  Hendrickson  v. 
Sigerson,  20  How.  156,  15  L.  ed. 
85  (1858);  compare  L.  Bucki,  etc., 
Co.  v.  Atlantic,  etc.,  Co.,  116  Fed.  1, 
53  C.  C.  A.  513  (1902)  where  a 
bill  was  allowed  to  compel  a  set- 


off to  be  deducted  from  a  verdict, 
although  the  Federal  court  of  law 
giving  the  verdict  had  refused  to 
correct  its  error  in  overlooking  the 
set-off. 

60.  There  seems  to  be  some  con- 
fusion in  the  language  of  text- 
books and  decisions  on  this  point, 
but  the  statement  in  the  text  is 
believed  to  be  unquestionably  the 
correct  doctrine.  Mr.  Pomeroy  in 
his  work  on  Equity  Jurisprudence, 
speaks  in  several  places  (p.  1294, 
note  3,  and  page  2106)  of  "can- 
celling judgments"  as  if  the  re- 
lief were  against  the  proceeding 
or  judgment  itself,  and  the  latter 
could  actually  be  cancelled,  as  in 
the  case  of  a  bond.  Similar  ex- 
pressions are  found  in  Winchester 
V.  Grosvenor,  48  111.  521  (1868); 
and  Wagner  v.  Shank,  59  Md.  313 
(1882).  But  no  case  has  been 
found  by  the  writer,  either  among 
those  cited  by  Mr.  Pomeroy  or 
elsewhere,  in  which  relief  has  been 
granted  by  direct  cancellation  or 
vacating  of  the  proceedings  or 
judgment  of  a  court  of  law,  but 
in  all  cases,  the  relief  has  been 
against    the    party    who    obtained 


304 


EQUITY  PRACTICE 


set  out  the  judgment  and  state  fully  the  circumstances  of 
the  fraud  or  other  ground  relied  upon,^^  and  show  that  if 
it  had  not  been  for  the  fraud,  there  would  have  been  no 
decree.  The  relief  prayed  for  is  usually  an  injunction 
against  the  enforcement  of  the  judgment  either  perpet- 


the  judgment,  by  preventing  him 
from  taking  advantage  of  it,  or 
by  compelling  consent  to  a  new 
trial.  On  the  other  hand,  the  au- 
thorities are  numerous  to  the  effect 
that  a  court  of  equity  has  no 
power  to.  alter  the  records  or  va- 
cate the  judgment  of  a  court  of 
law.  Mr.  Freeman,  in  his  work  on 
Judgments  (4th  ed.).  Sec.  485,  says: 
"When  relief  is  granted  in  chan- 
cery from  a  judgment  at  law,  the 
interference  is  in  all  cases  indi- 
rect. The  judgment  is  not  can- 
celled nor  vacated,  nor  is  the  court 
of  law  nor  its  judge  enjoined  from 
proceeding,  nor  is  a  new  trial 
granted  in  express  terms.  A  court 
of  equity  acts  exclusively  upon 
the  person  of  the  adverse  party 
by  preventing  him  from  making 
an  inequitable  use  of  his  "judg- 
ment."  In  Barnesley  v.  Powel,  1 
Ves.  Sr.  284,  288,  one  of  the  earli- 
est cases  on  the  point.  Lord  Hard- 
wicke  said:  "Though  this  court 
cannot  set  aside  a  judgment  of  a 
common  law  court  obtained 
against  conscience,  yet  will  it  de- 
cree the  party  to  acknowledge  sat- 
isfaction on  that  judgment, 
though  he  has  received  nothing; 
because  obtained  where  nothing 
was  due."  In  Wynne  v.  Newman, 
75  Va.  811,  815  (1881)  the  court 
said:  "At  the  hearing,  the  court 
cancelled  the  judgment,  set  aside 
the  verdict  of  the  jury,  and  or- 
dered a  new  trial  in  the  action  at 


law.  A  court  of  chancery  under 
our  system  of  jurisprudence,  is  in- 
vested with  no  such  power  as  this. 
It  may  act  on  the  parties,  but  not 
directly  on  the  judgment,  nor  on 
the  court  which  rendered  it." 
See  also  Grafton,  etc.,  Co.  v. 
Davison,  45  W.  Va.  12   (1898). 

In  Wynne  v.  Newman,  75  Va. 
811  (1881),  also,  it  is  believed,  the 
law  as  to  the  practice  in  retrials 
is  correctly  stated.  The  court 
there  said:  "There  are  cases  in 
which  the  court  has  required  the 
defendant  in  chancery  to  submit 
to  a  new  trial  in  the  action  at  law, 
and  restrained  him  from  enforcing 
the  judgment  complained  of.  But 
the  regular  course  would  seem  to 
be  for  the  chancery  court  to  order 
such  issue  or  issues  as  may  be 
proper  and  to  base  its  decree  on 
the  finding  of  the  jury  at  the 
hearing,  either  dissolving  or  per- 
petuating the  injunction  in  whole 
or  in  part  according  to  circum- 
stances." Grafton,  etc.,  R.  Co. 
V.  Davison,  45  W.  Va.  12  (1898) 
accord, 

61.  Reed  v.  New  York,  etc.. 
Banks,  230  111.  50  (1907);  Angle- 
wicz  v.  Freda,  150  Mich.  634 
(1907);  Longdale  Iron  Co.  v. 
Quesenbery,  50  W.  Va.  451  (1901); 
United  States  v.  Atherton,  102  U. 
S.  372,  26  L.  ed.  213  (1880);  Trav- 
elers, etc.,  Association  v.  Gilbert, 
111  Fed.  269,  49  C.  C.  A.  309,  55  L. 
E.  A.  538    (1901). 


BILLS  NOT  ORIGINAL 


305 


ual,*'-  or  until  such  time  as  the  judgment  creditor  will 
submit  to  a  new  trial,"^  but  the  prayer  and  relief  granted 
maj^  vary  to  suit  the  circumstances  of  the  particular 
case.*'^  Leave  of  court  is  not  necessary  before  filing  the 
bill,  but  the  bill  should  be  verified  by  affidavit.^^ 

§  153.  Chajracteristics  of  both  classes  of  bills — Parties. 
In  general,  bills  to  impeach  decrees  or  enjoin  judgments 
can  only  be  maintained  by  those  who  were  parties  to  the 
original  judgment  or  decree  which  is  the  subject  of 
attack,  or  by  others  not  actually  parties  but  substantially 
interested  in  the  result,*^"  and  the  bill  thus  brought  should 
bring  before  the  court  either  as  plaintiffs  or  defendants 
all  such  parties  to  the  decree  or  persons  interested.*^'''  But 
a  stranger  to  the  judgment  whose  rights  are  fraudulently 
prejudiced  thereby  is  held  to  have  sufficient  interest  to 


62.  Herbert  v.  Herbert,  49  N.  J. 
E.  566   (1892). 

63.  Wierich  v.  DeZoya,  7  111. 
385   (1845). 

64.  Thus  the  decree  may  be 
taken  that  the  party  shall  ac- 
knowledge satisfaction  of  a  judg- 
ment. Barnesly  v.  Powell  ,1  Ves. 
Sr.  284;  Tomkins  v.  Tomkins,  11 
N.  J.  E.  512  (1858),  semble. 

Or  where  the  judgment  has  been 
enforced,  declare  the  party  trus- 
tee and  compel  him  to  account  for 
the  amount  Tomkins  v.  Tom- 
kins, 11  N.  J.  E.  512  (1858), 
semble. 

Or  enjoin  a  part  of  the  amount 
due.  Booth  v.  Kesler,  6  Gratt. 
(Va.)  350  (1849);  Embry  v. 
Palmer,  107  U.  S.  3,  27  L.  ed.  346 
(1882),  semble;  L.  Bucki,  etc.,  Co. 
V.  Atlantic,  etc.,  Co.,  116  Fed.  1,  53 
C.  C.  A.  513   (1902). 

Or  enjoin  the  fraudulent  or  ir- 
regular use  of  a  judgment  though 
Whitehouse  E.  P.  Vol.  I — 20 


properly      obtained.        Merritt      v. 
Baldwin,  6  Wis.  439   (1857). 

Or  grant  a  temporary  injunction 
where  the  circumstances  require 
it.  Headley  v.  Leavitt,  68  N.  J. 
E.  591  (1905);  Erye,  etc.,  Co.  y. 
Meyer,  121  Fed.  533,  58  C.  C.  A.  529 
(1903). 

65.  Brick  v.  Burr,  47  N.  J.  E. 
189   (1890). 

66.  Bell  V.  Johnson,  111  111.  374 
(1884);  Edson  v.  Cummings,  52 
Mich.  52  (1883);  Bergman  v. 
Hutcheson,  60  Miss.  872  (1883); 
Prince's  Admr.  v.  McLemore,  108 
Va.  269  (1908);  Stone  v.  Towne, 
91  U.  S.  341,  23  L.  ed.  412  (1875). 

67.  Adair  v.  Cummings,  48  Mich. 
375  (1882);  Whittemore  v.  Coster, 
4  N.  J.  E.  438  (1844);  Harrison 
V.  Walton's  Exor.,  95  Va.  721,  41 
L.  E.  A.  703,  64  Am.  St.  E.  830 
(1898);  Harwood  v.  Cincinnati  E. 
Co.,  17  Wall.  80,  21  L.  ed.  558 
(1872). 


306 


EQUITY  PRACTICE 


maintain  a  bill.     Thus  judgments  in  fraud  of  creditors 
may  be  set  aside  by  the  creditors."^ 

§  154.  — Jurisdiction — Courts  within  the  state  and  out 
of  the  state.  A  bill  to  impeach  a  decree  or  enjoin  a  judg- 
ment should  be  filed  in  the  equity  court  of  the  county 
where  the  judgment  decree  was  rendered.*^^  But  a  court  of 
equity  has  also  the  power  to  grant  relief  for  cause  shown 
against  decrees  and  judgments  of  other  jurisdictions, 
whether  state,  Federal  or  foreign,  by  preventing  those 
parties  to  such  decree  or  judgment  who  are  before  the 
court  and  within  its  jurisdiction  from  taking  advantage 
of  it."^" 


68.  Elting  V.  First  Nat.  Bank, 
173  111.  368  (1898);  Babcock  v. 
Babcock,  150  Mich.  558  (1907); 
Palmer  v.  Martindell,  43  N.  J.  E. 
90   (1887). 

In  Mallery  v.  Quinn,  88  Md.  38 
(1898)  it  was  held  that  a  stranger 
might  bring  a  petition  instead  of 
an  original  bill,  aiter  enrollment 
of  an  ex  parte  judgment,  which 
though  not  obtained  by  fraud  was 
a  fraud  in  effect  on  the  stranger's 
rights;  but  in  United  Lines  Tel. 
Co.  V.  Stevens,  67  Md.  156  (1887) 
the  court  in  a  similar  case  where 
the  fraud  was  in  the  obtaining  of 
the  decree,  says  that  there  must  be 
a  bill  rather  than  a  petition.  In 
Kanawha,  etc.,  Co.  v.  Evans,  65 
W.  Va.  622  (1909),  the  plaintiff  in 
the  original  bill  had  fraudulently 
omitted  to  name  a  necessary  de- 
fendant, as  a  party,  and  thus  had 
gained  possession  of  a  court  fund 
to  which  he  was  not  entitled;  the 
court  allowed  his  omitted  defend- 
ant to  bring  a  petition,  which  was 
treated  as  a  cross-bill,  to  open  the 
decree. 

69.  Shrader  v.  Walker,  8  Ala. 
244  (1845);  MacLean  v.  Wayne, 
etc.,  Judge,  52   Mich.   257    (1882). 


70.  Wilson  V.  Anthony,  72  N.  J. 
E.  836  (1907);  Sahlgaard  v.  Ken- 
nedy, 2  Fed.  295  (1880).  But  this 
power  is  to  be  exercised  with  cau- 
tion; same  references. 

As  between  state  and  Federal 
courts,  although  the  latter  are  pro- 
hibited by  R.  S.  1878,  Sec.  720, 
from  granting  injunctions  to  stay 
proceedings  in  state  courts,  and 
though  it  has  been  held  that  state 
courts  cannot  enjoin  proceedings 
or  judgments  in  Federal  Courts, 
(McKim  V.  Voorhies,  7  Cr.  279, 
3  L.  ed.  342  (1812)),  yet  on  the  prin- 
ciple stated  above  in  the  text, 
wherever  a  decree  or  judgment  has 
been  obtained  by  fraud  or  other 
sufficient  ground,  a  bill  may  be 
filed  for  equitable  relief  in  either 
the  state  or  Federal  courts,  the 
other  requisites  of  jurisdiction  be- 
ing satisfied.  Dehon  v.  Foster,  4 
All.  (Mass.)  545  (1862);  Arrow- 
smith  V.  Gleason,  129  U.  S.  86,  32 
L.  ed.  630  (1888).  In  such  bills, 
when  the  original  decree  or  judg- 
ment was  from  a  state  court,  the 
court  takes  jurisdiction  as  of  an 
original  bill  for  fraud,  and  the 
question  whether  the  court  would 
have  had  jurisdiction  of  the  orig- 


BILLS  NOT  ORIGINAL 


307 


§  155.  Bills  to  enforce  decrees.  A  bill  in  equity  may  be 
brought  to  carry  into  effect  a  decree  of  the  same  or  a 
different  court,  as  the  exigencies  of  the  case  or  the 
interests  of  the  parties  may  require,'^  generally  in  cases 


inal  controversy  is  immaterial,  e. 
g.  the  court  may  have  jurisdiction 
of  the  bill  to  impeach,  on  the 
ground  of  diversity  of  citizenship, 
where  it  would  not  have  had  juris- 
diction in  the  suit  in  which  the 
judgment  or  decree  was  originally 
entered.  Robb  v.  Vos,  155  U.  S. 
13,  39  L.  ed.  52  (1894);  Marshall 
V.  Holmes,  141  U.  S.  589,  35  L.  ed. 
870  (1891);  Arrowsmith  v.  Glea- 
son,  129  U.  S.  86,  32  L.  ed.  630 
(1888);  Johnson  v.  Waters,  111 
U.  S.  640,  28  L.  ed.  547  (1883); 
Barrow  v.  Hunton,  99  U.  S.  83, 
25  L.  ed.  408  (1878);  National 
Surety  Co.  v.  State  Bank,  120  Fed. 
593,  56  C.  C.  A.  657,  61  L.  R.  A. 
394  (1903). 

But  on  the  other  hand,  when  the 
original  judgment  or  decree  was 
in  the  same  Federal  court  where 
the  bill  to  impeach  is  brought,  the 
court  has  jurisdiction  of  that  bill 
irrespective  of  the  jurisdictional 
requisites  which  it  would  present 
were  it  brought  as  a  strictly  origi- 
nal bill.  Pacific,  etc.,  E.  Co.  v. 
Missouri  Pacific  E.  Co.,  Ill  U.  S. 
505,  28  L.  ed.  498  (1884).  But  nev- 
ertheless, if  the  bill  to  impeach  is 
properly  within  the  jurisdiction  of 
the  court,  regarded  as  an  original 
bill,  the  question  -of  the  court's 
jurisdiction  over  the  bill  in  which 
the  decree  complained  of  was  ren- 
dered, can  not  be  regarded  as 
raised  by  an  appeal  on  the  bill  to 
impeach.  Carey  v.  Houston,  etc., 
R.  Co.,  150  U.  S.  171,  37  L.  ed. 
1,041  (1893). 


No  bill  lies  in  the  Federal  court, 
where  the  decree  of  the  state  court 
is  invalid  on  its  face.  Blythe  v. 
Hinckley,  84  Fed.  246  (1897);  Little 
Eock,  etc.,  E.  Co.  v.  Burke,  66  Fed. 
83,  13  C.  C.  A.  341  (1895). 

71.  Illinois.  Hultberg  v.  Ander- 
son, 252  111.  607  (1912);  Lancaster 
V.  Snow,  184  HI.  534  (1900);  Ober- 
ein  V.  Wells,  163  111.  101  (1896). 

Massachusetts.  Grew  v.  Breed, 
12  Met.   (Mass.)   363   (1847). 

Michigan.  Terry  v.  McClintock, 
41  Mich.  492  (1879). 

New  Jersey.  South,  etc.,  Co.  v 
Staley,  75  N.  J.  E.  63  (1908) 
Roche  V.  Hoyt,  72  N.  J.  E.  947,  aW 
71  N.  J.  E.  323  (1907). 

United  States.  Eoot  v.  Wool 
worth,  150  U.  S.  401,  37  L.  ed 
1,123  (1893);  Shields  v.  Thomas 
18  How.  253,  15  L.  ed.  368  (1855) 
Alton  Water  Co.  v.  Brown,  166  Fed 
840,  42  C.  C.  A.  598   (1908). 

Such  a  bill  is  the  proper  way  of 
reviving  a  decree  which  is  about 
to  become  barred  by  limitations. 
Sheinwald  v.  Lewis,  69  Fed.  486 
(1895). 

In  Griggs  v.  Detroit,  etc.,  E. 
Co.,  10  Mich.  117  (1862),  it  is 
stated  that  if  the  parties  in  inter- 
est are  the  same,  and  no  new 
rights  have  arisen,  a  petition  is 
enough,  otherwise  a  bill  must  be 
brought.  Here  there  was  a  bill, 
and  it  was  sustained. 

When  a  state  court  renders  a 
decree  against  a  non-resident,  the 
other  parties  to  the  suit  may  bring 
a  bill  in  the  Federal  courts  to  en- 


308 


EQUITY  PRACTICE 


where  parties  have  neglected  to  proceed  upon  the  decree 
and  their  rights  under  it  have  in  consequence  become  so 
embarrassed  by  a  variety  of  subsequent  events  that  it  is 
necessary  to  have  a  decree  of  the  court  to  settle  and 
ascertain  them.  This  bill  is  sometimes  brought  by  a 
person  who  was  not  a  party,  and  who  does  not  claim  under 
a  party  to  the  original  decree,  but  who  claims  under  a 
like  interest,  or  who  is  unable  to  obtain  the  determination 
of  his  own  rights  until  the  decree  has  been  executed  ^^ 
or  it  may  be  brought  by  or  against  a  person  claiming  as 
assignee  of  a  party  to  the  decree.'^ 

The  court  in  general  only  enforces  and  does  not  vary 
the  decree,'^  but  under  certain  circumstances  it  will  some- 
times reconsider  the  original  directions  and  vary  them 
in  case  of  mistakeJ^  Furthermore,  if  the  court  finds  the 
decree  to  be  unjust,  it  will  refuse  to  enforce  it  altogether  '^ 
and  in  consent  decrees,  the  court  may  refuse  to  be  bound 
by  the  consent  of  the  parties,  and  investigate  the  merits 
of  the  cause,"  or  may  give  a  qualified  relief  by  directing 


R. 


41 


force  the  decree.  Shields  v. 
Thomas,  18  How.  253,  15  L.  ed.  368 
(1855). 

72.  Griggs    v.    Detroit,    etc. 
Co.,  10  Mich.  117  (1862). 

73.  Terry  v.  MeClintock, 
Mich.  492  (1879);  Root  v.  Wool 
worth,  150  U.  S.  401,  37  L.  ed 
1,123  (1893);  Central  Trust  Co.  v 
Western  N.  C.  R.  Co.,  89  Fed.  24 
James  v.  Central  Trust  Co.  of  N 
Y.,  98  Fed.  489,  39  C.  C.  A.  126 
(1899);  Secor  v.  Singleton,  41  Fed. 
725   (1890). 

74.  Hultberg  v.  Anderson,  252 
111.  607  (1912);  Lancaster  v.  Snow, 
184  111.  534  (1900);  Halms  v.  Rizer, 
98  Tenn.  414  (1896). 

75.  Wadhams  v.  Gay,  73  111.  415 
(1874);  Terry  v.  MeClintock,  41 
Mich.  492   (1879);   Roche  v.  Hoyt, 


72  X.  J.  E.  947,  aflf.  71  X.  J.  E.  323 
(1907). 

76.  Hultberg  v.  Anderson,  252 
111.  607   (1912);   Wadhams  v.  Gay, 

73  111.  415  (1874);  Gay  v.  Parpart, 
106  U.  S.  679,  27  L.  ed.  276  (1882); 
Rutledge  v.  Waldo,  94  Fed.  265 
(1899),  semile. 

In  Teel  v.  Dunnihoo,  230  HI.  476 
(1907),  in  a  careful  decision  the 
court  held  that  the  former  decree 
was  just,  and  so  on  cross  bill  it 
was  enforced  as  against  the  at- 
tempt of  persons,  apparently  en- 
titled by  an  error  in  carrying  out 
the  original  decree  at  the  time  it 
was  given,  to  enforce  their  ap- 
parent right  to  a  partition. 

77.  Wadhams  v.  Gay,  73  111.  415 
(1874),  semble;  Gay  v.  Parpart, 
106  U.  S.  679,  27  L.  ed.  276  (1882), 
semble. 


BILLS  NOT  ORIGINAL  309 

that  the  former  decree  be  executed  in  part  and  carried 
no  further/^ 

The  decree  sought  to  be  executed  by  the  bill  must  be 
final  and  not  interlocutory J*^ 

78.  Burke  v.  O'Malley,  1  Beatty  79.  McFadden   v.   McFadden,   44 

121   (Ir.   Ch.).  Cal.   306. 


CHAPTER  VII 
VENUE,  FILING  AND  SERVICE 

§  156.  Venue.  The  plaintiff  being  now  ready  to  bring 
his  suit,  the  next  question  to  be  determined  is  where  it  is 
to  be  brought.  In  several  states  there  are  constitutional 
or  statutory  provisions  for  the  venue  of  equitable  causes. 
These  for  the  most  part  distinguish  between  suits  con- 
cerning or  affecting  the  title  to  property,  which  are 
treated  as  local  actions,  and  suits  which  act  directly  and 
primarily  on  the  person,  which  are  considered  personal 
and  transitory.^  Where  there  are  no  statutory  provisions 
relating  to  venue  in  equitable  actions,  those  relating  to 
actions  at  law  are  followed  by  analogy.^ 

§  157.  — Local  actions.  Statutes  generally  provide 
that  suits  in  equity  which  concern  or  affect  real  estate 
must  be  brought  in  the  county  where  the  property  is  sit- 

1.  The  question  of  venue  is  so  parties  E.  S.,  Chap.  83,  Sec.  13, 
largely  regulated  by  statutes- which       would   be   followed. 

differ  in  their  wording,  that  it  is  In  Massachusetts,  Kev.  Laws  of 

necessary  to  consult  these  statutes  1902,    Chap.    159,    Sec.    5,   provides 

carefully  and  their  construction  by  that  suits  in  equity  may  be  brought 

the  courts.  in  any  county  in  which  a  transitory 

2.  The  general  practice  in  Maine  action  between  the  same  parties 
follows  the  statutes  concerning  might  be  brought,  as  well  as  in 
actions  at  law,  which  provide  in  counties  in  which  it  is  elsewhere 
substance  that  personal  and  transi-  provided  that  such  suits  may  be 
tory    actions    with    certain    excep-  brought. 

tions   shall   be   brought,   when   the  Florida,    G.    S.,    Art.    2,    §  1860 

parties   live    in    the    state,    in    the  makes    all    provisions    of    the    law 

county  where   any  plaintiff  or   de-  governing    locality    of    actions    at 

fendant  lives,  and  when  no  plain-  law  applicable  to  those  in  chancery, 

tiff  lives  in  the  state,  in  the  county  And   see   Bay   State   Iron   Co.   v. 

where  any  defendant  lives.     E.  S.  Goodall,  39  X.  H.  223,  75  Am.  Dec. 

Chap.  83,  Sec.  9;   but  where  coun-  219   (1859), 
ties,    towns    and    corporations    are 

310 


VENUE,  FILING  AND  SERVICE 


311 


uated.^  If  the  defendants  are  non-residents,  the  suit  may 
in  some  states  be  brought  in  the  county  where  the  sub- 
ject-matter of  the  suit  was  when  the  cause  of  action  arose 
or  the  act  on  which  the  suit  was  founded  was  to  be 
performed,^  and  in  others  in  any  county  where  the 
defendant  may  have  estates  or  debts  owing  him,  or 
wherever  he  may  be  found  and  served  with  process.^ 
Where  real  estate  is  situated  in  different  counties,  suit 
may  be  brought  in  either.^  If  the  suit  is  to  enjoin  a  suit 
or  judgment  at  law,  it  must  be  brought  where  the  suit 
is  pending  or  judgment  is  entered^ 

§  158.  — Personal  and  transitory  actions.  Where  the 
suit  is  not  of  a  local  nature,  it  is  provided  in  some  states 
that  it  must  be  brought  in  the  county  where  one  of  the 


3.  ni.,  J.  &  A.  II 882,  E.  S.  of 
1903,  Chap.  22,  Sec.  3;  Md.,  Code, 
Art.  16,  Sec.  83;  Mich.,  How.  Ann. 
St.  (2d  ed.)  §11951;  Comp.  L., 
Title  4,  Part  3,  Sec.  22;  Miss., 
Code,  Sec.  561;  Tenn.,  Code,  Sec. 
6121;  Va.,  Code,  Sec.  3214;  W.  Va., 
Code  1906,  Sec.  3794. 

The  word  "charge"  in  the  Mary- 
land statute  means  a  lien  or  in- 
cumbrance or  claim  which  is  to  be 
satisfied  out  of  the  specific  thing 
or  proceeds  thereof  to  which  it  ap- 
plies. Abramson  v,  Horner,  115 
Md.  232    (1911). 

Sec.  54  of  the  Federal  Judicial 
Code,  Act  of  March  3,  1911,  Chap. 
231,  provides  that  in  suits  of  a 
local  nature  where  the  defendant 
resides  in  a  different  district  in 
the  same  state  from  that  in  which 
the  suit  is  brought,  the  plaintiff 
may  have  original  and  final  proc- 
ess against  him  directed  to  the 
marshall  of  the  district  in  which 
he  resides. 

4.  Ala.,  Code,  Sec.  3093;  Tenn., 
Code,  Sec.  6121. 


5.  Va.,  Code,  Sec.  3214;  W.  Va., 
Code  1906,  Sec.  3794. 

6.  Md.,  Code,  Art.  16,  Sec.  83; 
Mich.,  How.  Ann.  St.  (2d  ed.) 
§11951;  Comp.  L.,  Title  4,  Part 
3,  See.  22.  Sec.  55  of  the  Fed- 
eral Judicial  Code,  Act  of  March 
3,  1911,  Chap.  231,  provides  that 
where  the  land  or  other  subject 
matter  of  a  fixed  character  lies 
partly  in  one  district  and  partly 
in  another  within  the  same  state, 
suit  may  be  brought  in  the  district 
court  of  either  district. 

7.  Ala.,  Code,  Sec.  3093;  HI.,  J. 
&  A.  H  883,  R.  S.  of  1903,  Chap.  22, 
Sec.  3;  Tenn.,  Code,  Sec.  6121 
(county  where  suit  pending  or  to 
which  execution  is  issued).  But 
where  the  primary  object  of  a  bill 
is  to  compel  specific  performance 
of  a  contract  to  sell  land  and  aii 
injunction  is  asked  as  incidental 
relief,  the  primary  object  of  the 
bill  determines  its  venue.  Hayes 
V.  0  'Brien,  149  111.  403,  23  L.  R.  A. 
555  (1894). 


312 


EQUITY  PRACTICE 


parties  in  interest  resides;^  in  other  states,  where  any 
defendant  resides ;  ^  and  in  still  others,  if  the  subject- 
matter  is  not  local  and  the  defendants  are  non-residents, 
it  may  be  brought  in  any  county  where  they  may  be  found 
and  served  with  process.^*^  If  a  corporation  is  defendant, 
the  suit  may  be  commenced  in  the  county  wherein  its 
mayor,  rector,  president,  or  other  officer  resides,  or  where 
the  corporation  has  its  principal  place  of  business. ^^ 

§  159.  — Actions  by  the  state.     Suit  in  behalf  of  the 
state   may   in    some   jurisdictions    be   brought    in    any 


8.  Me.,  R.  S.  Ch.  83,  See.  9;  Mass. 
Rev.  Laws,  Chap.  167,  Sec.  1; 
Mich.,  How.  Ann.  St.  (2d  ed.) 
§  11951,  C.  L.  Title  4,  Part  3,  Sec. 
22.  In  Vermont  the  same  rule  ap- 
plies even  though  the  subject  mat- 
ter of  suit  is  local,  unless  the  par- 
ties are  all  non-residents,  in  which 
case  the  suit  must  be  brought 
where  the  subject  matter  is  sit- 
uated. Vt.  P.  S.,-  Chap.  65,  Sec. 
1240. 

9.  Ala.  Code,  Sec.  3093;  HI.,  J.  & 
A.  1883,  R.  S.  of  1903.  Chap.  22, 
Sec.  3;  Me.  R.  S.  Chap.  83,  Sec.  9 
(where  no  plaintiff  lives  in  the 
state);  Md.,  Code,  Art.  16,  Sec. 
83;  Miss.,  Code,  Sec.  561  (where 
defendant  may  reside  or  be 
found);  Tenn.,  Code,  Sec.  6121  (or 
wherever  defendant  may  be  found, 
Sec.  6115);  Va.,  Code,  Sec.  3214; 
W.  Va.,  Code  1906,  Sec.  3794. 

Sec.  51  of  the  Federal  Judicial 
Code,  Act  of  March  3,  1911,  Chap. 
231,  provides  that  "except  as  pro- 
vided in  the  six  succeeding  sec- 
tions, no  civil  suit  shall  be  brought 
in  any  district  court  against  any 
person  by  any  original  process  or 
proceeding  in  any  other  district 
than  that  whereof  he  is  an  inhabi- 
tant; but  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the 


action  is  between  citizens  of  dif- 
ferent states,  suit  shall  be  brought 
only  in  the  district  of  the  resi- 
dence of  either  the  plaintiff  or  the 
defendant." 

Sections  52  and  53  provide  in 
substance  that  suits  not  of  a  local 
nature  in  states  containing  more 
than  one  district  shall  be  brought 
in  the  district  where  the  defend- 
ant resides  or  if  two  or  more  de- 
fendants reside  in  different  dis- 
tricts of  the  state,  it  may  be 
brought  in  either,  or  when  a  dis- 
trict contains  more  than  one  divi- 
sion, it  may  be  brought  in  the 
division  where  the  defendant  re- 
sides, or  if  more  than  one  defend- 
ant resides  in  different  divisions, 
it  may  be  brought  in  either  divi- 
sion. 

10.  111.,  J.  &  A.  11883,  R.  S.  of 
1903,  Chap.  22,  Sec.  3;  Mass.,  Rev. 
Laws,  Chap.  167,  Sec.  1;  Mich., 
How.  Ann.  St.  (2d  ed.)  §  11951,  C. 
L  Title  4,  Part  3,  Sec.  22;  Vt.  P.  S., 
Chap.  65,  Sec.  1240;  Va.,  Code,  Sec. 
3214;  W.  Va.,  Code  1906,  Sec.  3794. 
See  also  Rice  v.  Brown,  81  Me.  56 
(1888). 

11.  Me.  R.  S.  Ch.  83,  Sec.  13;  Va. 
Code,  Sec.  3214;  W.  Va.,  Code  1906, 
Sec.  3794;  see  also  Mass.  Rev. 
Laws,  Chap.  167,  See.  7. 


VENUE,  FILING  AND  SERVICE 


313 


coimty,^^  and  in  others  in  the  county  in  which  the  seat  of 
government  is  situated.  ^^ 

§  160.  — Actions  for  redemption,  foreclosure,  specific 
performance,  quieting  title,  and  partition.  In  determin- 
ing whether  a  suit  in  equity  is  local  or  transitory,  it  is 
necessary  to  consider  whether  the  decree  operates  directly 
and  primarily  upon  the  person  of  the  defendant,  with 
only  an  incidental  operation  upon  the  realty;  or  whether 
it  has  a  direct  and  primary  operation  upon  the  possession 
itself.  ^^  Some  courts  have  held  that  bills  for  redemption 
and  foreclosure  of  real  estate,^^  for  the  specific  perform- 


12.  Me.  E.  S.,  Chap.  83,  Sec.  15. 

13.  Va.  Code,  Sec.  3214  (in  the 
City  of  Richmond);  W.  Va.,  Code 
1906,  See.  3794. 

14.  In  Illinois  where  the  Chan- 
cery Act,  J.  &  A.,  II  883,  requires 
suit  "affecting  real  estate"  to  be 
brought  in  the  county  where  the 
property  lies,  it  was  held  that  the 
statute  was  merely  declaratory  of 
a  general  principle  which  controls 
courts  in  administering  equitable 
relief.  The  court  said:  "Where  the 
relief  sought  does  not  require  the 
court  to  deal  directly  with  the  es- 
tate itself,  then  the  case  does  not 
within  the  meaning  of  our  statute 
or  of  the  general  rule  of  law  exist- 
ing independent  of  statute  affect 
such  real  estate  and  hence  affords 
no  objection  to  the  jurisdiction  of 
the  court  where  the  parties  in  in- 
terest are  all  before  it,  although 
the  land  to  which  the  controversy 
relates  is  not  within  the  jurisdic- 
tion of  the  court."  Johnson  v. 
Gibson,  116  111.  294  (1886).  And 
see  Hayes  v.  O'Brien,  149  111.  403, 
23  L.  R.  A.  555  (1894);  Lawrence 
V.  Hathaway,  128  Mich.  119  (1901) ; 
Thomas  v.  Hukill,  131  Pa.  298 
(1890). 


15.  Smith  V.  Larrabee,  58  Me. 
361,  374,  375  (1870).  The  court 
there  said:  "A  preliminary  ques- 
tion was  raised,  whether  this  bill 
can  be  sustained  in  Penobscot 
county,  as  the  land  lies  in  other 
counties,  although  the  defendant 
and  some  of  the  complainants  live 
in  the  county  in  which  the  bill  is 
brought.  On  consideration,  we  are 
satisfied  that  a  bill  for  redemption 
may  be  sustained  in  this  county. 
It  is  in  the  nature  of  a  personal 
action.  It  seeks  only  for  a  final 
decree  requiring  the  defendant  to 
do  a  specific  personal  act,  viz.,  re- 
lease the  premises.  The  deed  he 
gives  must  be  recorded  in  the  reg- 
istry of  the  county  where  the  land 
lies.  This  keeps  the  record  title 
perfect.  The  obligation  to  do  this, 
where  there  has  been  a  legal  re- 
demption, is  one  that  attaches  to 
the  person  wherever  he  is.  The 
rule  is,  ' equitas  agit  in  personam,' 
and  this  doctrine  has  been  applied 
where  the  bill  was  brought  to  fore- 
close a  mortgage  where  that  mode 
was  allowed  by  law. 

"If  a  mortgage  can  be  fore- 
closed by  a  bill  brought  in  the 
county,    a    fortiori,    it    can    be    re- 


314 


EQUITY  PRACTICE 


ance  of  contracts  for  the  sale  of  real  estate,^^  and  bills -for 
partition  ^'  are  in  the  nature  of  personal  actions  and  are 


deemed  by  such  a  bill.  This  case 
illustrates  the  practical  diiiiculty 
of  a  rule  which  should  absolutely 
require,  in  all  cases,  that  the  bill 
he  brought  in  the  county  in  which 
the  land  lies.  In  which  of  the 
counties  should  it  be  commenced? 
Or  must  there  be  two  distinct 
bills,  or,  in  case  of  land  in  four  or 
five  or  more  counties,  in  one  mort- 
gage, must  there  be  a  bill  in 
each? 

"Without  entering  into  a  more 
extended  discussion  of  this  point, 
we  will  simply  refer  to  a  few  au- 
thorities in  which  the  question  is 
considered.  Story's  Eq.  Jur.,  Sees. 
743,  744,  899,  900;  Great  Falls 
M.  Co.  V.  Worster,  3  Fost.  (X.  H.) 
463,  and  eases  there  cited;  Toller  v. 
Carteret,  2  Vern.  494."  See  dis- 
senting opinion  by  Cutting,  J.,  pre- 
senting the  other  side  of  the  ques- 
tion; also  Wipler  v.  Warren,  163 
Mich.  189  (1910),  contra,  and 
Beeves  v.  Brown,  103  Ala.  357 
(1893),  holding  that  bill  for  fore- 
closure might  be  brought  either  in 
the  district  where  the  land  lay  or 
where  the  mortgagor  resided. 
Where  the  land  is  situated  in  sev- 
eral counties,  the  court  of  either 
county  has  jurisdiction.  Bowling 
V.  Munchus,  65  Ala.  558  (1880); 
Stevens  v.  Ferry,  48  Fed.  7  (1891). 
A  bill  to  redeem  may  be  brought  in 
any  county  where  the  court  has 
jurisdiction  of  the  parties,  even 
though  land  is  in  another  state. 
Clark  V.  Seagraves,  186  Mass.  430 
(1905). 

16.  Morgan  v.  Eaton,  59  Fla.  562 
(1910);  Hayes  v.  O'Brien,  149  111. 
403,  23  L.  R.  A.  555  (1894);  Dorsey 


V.  Ono,  93  Md.  74  (1901);  Davis  v. 
Parker,  14  Allen  (Mass.)  94  (1864). 

17.  Donuell  v.  Corey,  Xo.  761,  on 
equity  docket  of  supreme  judicial 
court,  Cumberland  county,  Maine. 
In  this  case  the  land  was  in  Han- 
cock county,  but  none  of  the  par- 
ties— the  plaintiffs  being  nearly  all 
in  New  York,  and  the  defendants 
nearly  all  in  Cumberland  county, 
Maine,  and  the  partition  was 
decreed. 

Jurisdiction  has  been  taken  and 
partition  decreed  in  several  other 
unreported  cases  in  Maine,  and 
there  can  be  no  question  but  that 
bills  for  partition  or  other  suits  in 
equity  concerning  real  estate  may 
properly  be  brought  Jn  the  county 
where  the  plaintiff  or  defendant 
resides,  without  regard  to  where 
the  land  is  situated.  Though  the 
question  is  to  be  determined  by  the 
"analogies  derived  from  the  com- 
mon law"  (as  stated  by  the  court 
in  Bradstreet  v.  Butterfield,  129 
Mass.  339)  yet  it  is  also  to  be  de- 
cided by  the  "practice  of  courts 
of  chancery;"  and  whereas  follow- 
ing the  analogy  of  the  law,  a  bill 
for  partition  corresponds  to  the 
writ  of  partition  at  law,  which 
was  a  real  action  and  could  only 
be  brought  where  the  land  was  sit- 
uated, yet  on  the  other  hand  fol- 
lowing the  practice  of  general 
chancery  courts,  which  act  in  per- 
sonam in  ways  unknown  to  the 
common  law,  it  will  readily  be  seen 
that  such  suits  may  be  very  con- 
veniently and  properly  treated  as 
of  a  personal  and  transitory  na- 
ture in  equity.  It  is  settled  beyond 
question     that     where     courts     of 


VENUE,  FILING  AND  SERVICE 


315 


not  confined  to  the  county  wliere  the  land  lies,  as  are 
real  actions  at  common  law.  Actions  to  quiet  title  ^^  and 
for  injunctions  to  protect  interests  in  land  ^^  have  been 
held  to  be  local  in  their  nature.     On  the  other  hand, 


equity  have  jurisdiction  of  the  par- 
ties within  the  state  they  can  en- 
force redemption,  foreclosure,  and 
other  decrees  concerning  real  es- 
tate situated  out  of  the  state  by 
compelling  the  parties  to  execute 
conveyances  to  be  recorded  in  the 
county  where  the  land  is  situated. 
Smith  V.  Larrabee,  58  Me.  374 
(1870);  Reed  v.  Reed,  75  Me.  264 
(1883);  Eaton  v.  McCall,  86  Me. 
346  (1894).  A  fortiori,  this  can  be 
done  where  the  land  is  merely  in  a 
different  county  from  that  where 
the  parties  reside. 

On  the  other  hand  it  would  not 
necessarily  follow  that  bills  for 
partition  or  suits  of  like  nature 
affecting  real  estate  (see  Johnson 
V.  Gibson,  116  111.  294  (1885)  ), 
may  not  also  be  brought  in  the 
county  where  the  land  lies  although 
the  parties  reside  elsewhere,  fol- 
lowing the  analogy  of  the  common 
law  writ  of  partition.  In  such  a 
case,  if  the  parties  resided  within 
the  state  although  in  a  different 
county  from  that  where  the  land 
was  situated,  the  court  could  en- 
force its  decrees  against  the  person 
in  the  usual  way,  but  if  the  parties 
were  all  non-residents,  the  court 
could  then  proceed  as  indicated  in 
the  case  of  DuPuy  v.  Standard  Min- 
eral Co.,  88  Me.  202  (1895),  where 
the  land  in  question  was  situated 
in  the  county  of  Sagadahoc,  Maine, 
and  the  bill  was  brought  in  that 
county  by  the  plaintiff  as  trustee 
of  the  land,  although  both  he  and 
all  the  parties  interested  were  non- 
residents, praying  for  the  appoint- 


ment of  a  new  trustee  and  the  sale 
of  the  land  by  him  for  the  benefit 
of  the  beneficiaries.  The  court  held 
that  the  bill  was  properly  brought 
in  Sagadahoc  county,  since  juris- 
diction of  the  res  enabled  a  court 
of  equity  to  enforce  its  decrees  by 
empowering  an  officer  of  the  court 
to  make  any  necessary  transfer  of 
title.  Nevertheless  it  may  be 
argued  that  since  such  suits  in 
equity  are  held  to  be  in  the  nature 
of  personal  actions  seeking  a  decree 
merely  for  the  performance  of  a 
specific  personal  act  (Smith  v.  Lar- 
rabee, 58  Me.  374,  375  (1870)  ),  the 
analogy  of  the  Maine  Statute  (R.  S. 
Chap.  83,  Sec.  9),  which  provides 
that  personal  and  transitory  actions 
shall  be  brought  in  the  county 
where  the  plaintiff  or  defendant 
lives  on  penalty  of  double  costs, 
should  be  followed  in  these  as  in 
other  suits  in  equity  of  a  personal 
and  transitory  nature. 

In  Pillow  v.  Southwest  Virginia, 
etc.,  Co.,  92  Va.  144,  53  A.  S.  R. 
804  (1895),  the  plaintiff  insisted  un- 
successfully that  since  the  court 
had  jurisdiction  of  all  the  parties 
in  interest,  it  could  compel  defend- 
ants to  make  such  conveyances  of 
the  land  in  another  state  as  would 
protect  the  rights  involved  in  the 
suit.  And  see  also  the  discussion  in 
Godfrey  v.  White,  43  Mich.  171 
(1880),  although  the  question  of 
venue  is  not  involved  in  the 
decision. 

18.  Tennant  v.  Fretts,  67  W.  Va. 
569,  29  L.  R.  A.  (N.  S.)  625  (1910). 

19.  Munger  v.  Crowe,  219  111.  12 


316 


EQUITY  PRACTICE 


statutes  governing  the  venue  of  equitable  actions  some- 
times expressly  provide  that  bills  for  foreclosure  of  mort- 
gages,-" for  specific  performance  of  contract,-^  for  quiet- 
ing title  to  land,--  and  for  partition  must  be  brought 
where  the  property  is  situated.-^ 

§  160a.  Objections  and  waiver.  Where  it  appears  on 
the  face  of  tlie  bill  that  it  is  not  filed  in  the  proper  count}' 
or  district,  it  is  subject  to  demurrer,  or  may  be  dismissed 
on  motion.^^  If  it  does  not  appear  on  the  face  of  the  bill, 
a  plea  in  abatement  is  proper.-^  If  the  defendant  fails 
to  raise  properly  the  objection  that  the  bill  is  filed  in  the 
wrong  county,  and  the  court  has  jurisdiction  of  the  sub- 
ject-matter of  the  suit,  the  defendant  will  be  deemed  to 
have  waived  the  objection  and  cannot  raise  it  for  the 
first  time  on  appeal.^"  This  rule  is  based  on  the  ground 
that  rules  governing  venue  are  rules  of  procedure,  not 
of  jurisdiction,  and  confer  a  personal  privilege  that  may 
be  waived.^"^ 


(1905);  Fowler  v. .  Pendleton,  121 
Md.  297  (1913);  No.  Ind.  E.  Co.  v. 
Mich.  C.  E.  Co.,  15  How.  233,  14  L. 
ed.  674  (1853).  But  see  contra, 
Street  v.  Selig,  88  Ala.  533  (1889). 

20.  Md.  Code,  Art.  16,  Sec.  83; 
Tenn.  Code,  Sec.  6121. 

21.  How.  Ann.  St.  (2d.  ed.)  Sec. 
11951,  Mich.  C.  L.,  Title  4,  Part  3, 
Sec.  22;  Tenn.  Code,  Sec.  6121. 

22.  How.  Ann.  St.  (2d.  ed.).  Sec. 
11951,  Mich.,  C.  L.,  Title  4,  Part  3, 
See.  22;  Miss.  Code,  Sec.  561;  Tenn. 
Code,  Sec.  6121. 

23.  Md.  Code,  Art.  16,  Sec.  83; 
Miss.   Code,  Sec.   561. 

24.  Harwell  v.  Leahman,  72  Ala. 
344  (1882);  Parker  v.  Porter,  12 
Tenn.  81   (1883). 

Prior  to  the  equity  rules  of  1913, 
a  question  of  law  in  regard  to 
proper  venue  might  be  raised  either 
by  plea  in  abatement  or  motion  to 
dismiss.      Lewis    Blind    Stitch    Co. 


V.  Arbetter  Felling  Machinery  Co., 
181  Fed.  974  (1910).  Under  these 
rules,  however,  pleas  are  abolished. 
Eule  29. 

25.  Harwell  v.  Leahman,  72  Ala. 
344  (1882);  Crosby  v.  Harrison,  116 
Mass.  114  (1874);  Christian  Educa- 
tional Society  v.  Varney,  54  N.  H. 
376  (1874);  Hilliard  v.  Brevoort, 
F.  C.  No.  6505  (1845). 

26.  Gay  v.  Brierfield  Coal,  etc., 
Co.,  94  Ala.  303  (1891);  Branch 
Bank  v.  Eutledge,  13  Ala.  196 
(1848). 

26a.  Illinois.  Mason,  etc..  Special 
Drainage  Dist.  v.  Griffin,  134  111. 
330   (1898). 

Maryland.  Yoe  v.  Gelston,  37 
Md.  233    (1872). 

New  Hampshire.  Bishop  v.  Sil- 
ver Lake  Min.  Co.,  62  N.  H.  455 
(1883). 

New   Jersey.     Blackford   v.   Le- 


VENUE,  FILING  AND  SERVICE  317 

§  161.  Filing.  Having  determined  the  court  and  county 
where  the  suit  is  to  be  brought,  the  next  step  is  to  file  the 
bill.  Preparatory  to  filing,  however,  there  are  several 
points  of  detail  which  it  is  well  to  observe  in  order  to 
secure  uniformity  of  practice  and  the  convenience  of  the 
clerks  of  courts.  In  the  first  place,  the  completed  draft 
of  the  bill  which  is  to  be  placed  on  file  should  always  if 
possible  be  either  printed  or  typewritten,  and  if  the  latter 
(which  is  usually  the  case)  it  should  be  provided  with  a 
wrapper  or  back  fastened  at  the  top,  folded  in  a  con- 
venient form  for  filing.  When  thus  folded  it  should  be 
endorsed  on  the  outside  of  the  wrapper  at  the  top  with 
the  words,  "Bill  in  Equity"  and  the  names  of  the  parties, 
giving  the  full  name  of  the  plaintiff  as  stated  in  the  bill 
or  the  first  named  plaintiff  with  the  words  "et  al."  or 
*  *  et  als. ' '  if  there  be  one  or  more  co-plaintiffs,  * '  vs. ' '  the 
defendant  or  first  named  defendant  in  the  bill  "  et  al. "  or 
"et  als."  if  there  be  one  or  more  co-defendants,  giving 
such  defendant's  name  in  full  also  as  stated  in  the  bill. 
The  name  and  address  of  the  plaintiff's  solicitor  is  then 
usually .  added  at  the  bottom.  In  those  states  where 
service  is  made  by  copy  of  the  bill,  it  is  advisable  also  to 
prepare  as  many  printed  or  typewritten  copies  of  the 
original  bill  as  there  are  defendants  in  the  case,  for  the 
purpose  of  service  upon  the  latter,  in  order  to  avoid  the 
unnecessary  delay  and  expense  of  having  the  copies  made 
by  the  clerk.  These  copies  should  be  endorsed  in  the 
same  way  as  the  original  and  marked  "Copy."  The  bill 
and  copies  should  then  be  given  to  the  clerk  of  the  proper 
court  in  the  county  where  the  suit  is  to  be  brought,  who 

high  Valley  E.  Co.,  53  N.  J.  L.  56  West  Virginia.     Snyder  v.  Phil- 

(1890).  adelphia   Co.,   54   W.   Va.    149,   102 

Pennsylvania.      Fennell    v.    Guf-  A.  S.  R.  941,  63  L.  E.  A.  896  (1903). 

fey,  155  Pa.  St.  38  (1893).  United  States.     Ex  parte  Schol- 

Vermont.     Forbes  v.  Davison,  11  lenberger,  96  U.  S.  369,  24  L.   ed. 

Vt.  660  (1839).  S53   (1877). 

Virginia.      Beekley    v.    Valmere, 

n  Gratt.  625   (1854).  ' 


318  EQUITY  PRACTICE 

enters  the  name  of  the  case  upon  the  equity  docket,  with 
the  date  on  which  the  bill  is  thus  filed  and  the  name  of 
the  plaintiff's  solicitor  or  solicitors,  numbers  the  case, 
and  places  the  bill  in  the  file  of  equity  causes.^^'" 

§  162.  Process.  It  is  almost  universally  provided  by 
statute  that  subpoena,  or  process  in  chancery,  shall  not 
issue  until  a  bill  of  complaint  shall  have  been  filed  in  the 
clerk's  office.^'  This  subpoena,  which  is  the  regular  chan- 
cery process  for  compelling  appearance  upon  the  filing 
of  a  bill,  is  a  writ  issuing  out  of  the  court  and  under  its 
seal,  directed  to  the  defendant,  and  commanding  him  to 
appear  before  the  court  on  a  day  certain  and  answer  to  the 
bill  and  abide  the  judgment  of  the  court  thereon.  A  form 
of  subpoena  is  sometimes  contained  in  the  statutes  of  the 
various  states.  Where  process  is  not  returned  or  is 
returned  unexecuted  on  or  before  the  return  day,  the  clerk 
may  issue  alias  or  pluries  or  other  process  without  an 
order  of  court  therefor.  In  some  states  if  any  of  the 
defendants  reside  in  different  counties  from  that  in  which 
the  suit  is  brought,  original  process  may  issue  at  the  same 
time  to  each  county  in  which  any  of  the  defendants  reside. 
The  names  of  all  defendants  who  reside  in  the  same 
county  may  be  included  in  the  same  subpoena,  or  at  the 

26b.  Delivery    of    a    bill    to    the  the  costs  of  the  proceedings,  as  in 

clerk  in  his  office  is  a  filing  of  the  a  writ  of  attachment  in  a  suit  at 

bill  although  no  indorsement  on  it  law.      Pub.    Stat.,    Chap.    65,    Sec. 

of  filing  is  made.    Darnell  v.  Flynn,  1244. 

69  W.  Va.   146   (1911).  In  A^ermont,  chancery  subpoenas 

27.  An  exception  is  made  in  Del-  like    county   court   writs    are   com- 

aware   in    applications   for   injunc-  monly  signed  by  the  clerk  in  blank 

tion  to  stay  waste   or  proceedings  and   delivered   to   attorneys   to   be 

at  law.     Laws  of  Delaware,  Chap.  properly  filled  up  and  attached  to  a 

95,  Sec.  2  as  amended.  properly  executed  bill  of  complaint, 

In  Vermont  no  subpoena  requir-  but  the  bill  must  be  served,  entered 

ing  a  party  to  appear  to  answer  to  and    docketed    within    twenty  one 

a  bill  of  complaint  shall  issue  until  days  from  the  time  the  subpoena  is 

the  complainant  gives  sufficient  se-  issued,  or  the  process  will,  on  mo- 

curity  by  way  of  recognizance,  to  tion,  abate.     Acts  of  1908,  No.  55, 

be  taken  by  the  officer  signing  such  Sec.   2. 
subpoena,  to  the  adverse  party,  for 


VENUE,  FILING  AND  SERVICE 


319 


election  of  the  plaintiff  the  writ  may  be  sued  out  separ- 
ately for  each  defendant.-^ 

§163.  Service.  When  the  bill  is  tiled  in  the  clerk's 
office,  the  subpoena  issues  returnable  at  a  time  fixed  by 
statute  or  rule  of  court,  which  varies  in  the  different 
states,  being  either  on  the  first  day  of  a  term  or  on  a  rule 
day  occurring  within  a  certain  period  after  issuance  of 
the  subpoena,-^  or  it  may  be  returnable  a  certain  number 
of  days  after  its  service,^*'  and  in  certain  cases  on  a  day 


28.  In  Maryland  a  summons  may 
be  sued  out  separately  for  each  de- 
fendant except  in  the  case  of  hus- 
band and  wife.  Md.  Code,  Art.  16, 
Sec.   135. 

29.  Delaware.  Eule  9  (at  next 
regular  term  after  issuance). 

Florida.  Eule  11  (to  next  rule 
day  after  issuance,  unless  not  ten 
days  intervening,  in  which  case  re- 
turnable to  rule  day  in  next  suc- 
ceeding month). 

niinois.  J.  &  A.,  H  889,  Kurd's 
Stat.,  Chap.  22,  Sec.  9  (at  next  term 
after  date  thereof  or  at  next  suc- 
ceeding term). 

Maine.  E.  S.,  Chap.  79,  Sec.  12 
(on  first  day  of  a  term  of  court  or 
on  a  rule  day  within  sixty  days 
after  filing  of  bill). 

Maryland.  Code,  Art.  16,  Sec. 
134;  Eule  6  (first  Monday  of  month 
next  ensuing  the  date  of  issue.  In 
Baltimore  City  on  second  Monday 
of  month  ensuing  date  of  issue. 
Plaintiff  may  by  special  direction 
require  process  to  be  made  return- 
able at  return  day  next  after  first 
return  day). 

Massachusetts.  Eules  3  and  4 
(on  first  Monday  of  month,  which 
shall  be  within  three  months  after 
date  of  process  and  at  least  four- 
teen days  or  thirty  days  after  its 


date,  according  to  length  of  service 
required). 

Michigan.  Eule  4  (on  a  day  cer- 
tain not  less  than  ten  days  from 
issuance). 

Mississippi.  Code,  See.  3917  (re- 
turnable on  a  rule  day  or  first  day 
of  a  term). 

New  Hampshire.  Eule  87  (if  bill 
filed  in  term  time,  subpoena  return- 
able at  same  term  if  court  so  or- 
ders. If  filed  in  vacation,  return- 
able at  next  term). 

New  Jersey.  Comp.  St.  "Chan- 
cery," Sec.  3  (on  any  day  in  term 
time  or  vacation). 

Bhode  Island.  Gen.  Laws,  Ch. 
240,  Sec.  2  (at  any  time  within 
thirty  days  from  the  date  of  issue 
at   option   of  complainant). 

Tennessee.  Code,  Sec.  6158  (re- 
turnable on  rule  day). 

United  States.  Equity  Eule  12 
(returnable  twenty  days  from  is- 
suing thereof). 

30.  Alabama.  Code,  Sec.  3097 
(summons  to  appear  and  demur, 
plead  or  answer  within  thirty  days 
after  service). 

Pennsylvania.  Eule  4  (subpoena 
gives  notice  to  appear  within  fif- 
teen days  after  service). 

Vermont.  Eule  9  (on  first  day 
of  next  stated  term  that  shall  oc- 
cur twelve  days  after  service). 


320  EQUITY  PRACTICE 

fixed  by  special  order  of  court. ^^  In  some  states  it  may 
at  the  option  of  the  plaintiff  be  inserted  in  an  original 
writ  of  summons  or  summons  and  attachment  and  made 
returnable  like  writs  at  common  law.^-  Service  of  the 
subpoena  must  be  made  in  some  jurisdictions  a  certain 
number  of  days  before  the  return  day.^^  In  others,  it  may 
be  made  at  any  time  up  to  and  including  the  return  day.^^ 
There  are  two  general  classes  of  service,  viz: 
A.  Regular  service  as  of  course  under  statutes,  rules  of 
court  or  general  chancery  practice. 

This  class  includes  the  following  subdivisions. 

1.  Personal  service  of  bill,  in  hand  or  in  some  instances 
by  reading  subpoena  or  bj'^  leaving  at  last  and  usual  place 
of  abode,  on  resident  defendants. 

2.  Service  by  inserting  bill  in  writ  of  attachment  and 
serving  as  in  action  at  law  on  resident  defendants. 

3.  Service  by  order  of  notice,  issuing  out  of  clerk's 
office  as  of  course,  requiring  either  (a)  personal  service 

31.  Del.  Eule  9;. Me.  E.  S.,  Chap.  eral  fields  or  real  estate  lying  in 
79,  Sec.  12;  E.  I.  Gen.  Laws,  Ch.  common,  where  service  shall  be 
240,  Sees.  2  and  3.  thirty  days  before  return  day). 

32.  Me.  E.  S.  Chap.  79,  Sec.  12;  Mississippi.  Code,  Sec.  3917  (five 
Mass.  Acts  and  Eesolves,  1909,  days;  if  not,  it  shall  require  def end- 
Chap.  183,  Sec.  8.  ant  to  appear,  answer  or  demur  at 

33.  Delaware.  Eule  10  (six  days).       next  monthly  rule  day  more  than 
Florida.     Eule  15  (ten  days,  oth-       five  days  after  service). 

erwise  defendant  need  not  appear  New   Hampshire.      P.    S.,    Chap, 

until  next  succeeding  rule  day).  219,  Sec.  1  (fourteen  days). 

Illinois.     J.   &   A.,   H  896,   Hurd,  New  Jersey.     Comp.  S.    ' '  Chan- 
Chap.  22,  Sec.  11   (ten  days,  other-  eery,"  Sec.  5   (ten  days). 
wise  cause  stands  continued  until  Tennessee.  Code,  Sees.  6160,  6161 
next  succeeding  rule  day).  (service  five  days  before  return  day 

Maine.     E.  S.  Chap.  79,  Sec.  12  shall    bind    defendant    to    appear 

(fourteen    days    except   service    on  within  the  first  three  days  of  the 

corporations,  which  must  be  thirty  term  if  the  court  holds  so  long,  oth- 

days  before  return  day.     See  E.  S.,  erwise  on  the  first  day  of  the  term, 

Chap.  83,  Sec.  19.)  but   if  service  is  within  five  days 

Massachusetts.     E.  L.,  Chap.  167,  before  return  day,  he  is  not  bound 

Sees.  27,  28  and  37   (fourteen  days  to   appear  before   the  first   day   of 

except  upon  a  county,  city,  town,  the  second  term  after  service), 

parish      or     religious      society     or  34.  Michigan,  Eule  4. 
against  proprietors  of  wharfs,  gen- 


VENUE,  FILING  AND  SERVICE 


321 


or  (b)  service  by  publication,  ou  nou  resident  defendants. 
B.  Special  service  by  order  of  court. 
This  class  comprises  the  following  methods : 

1.  Service  on  resident  defendants  by  special  order  of 
court  on  bill. 

2.  Service  on  non-resident  defendants  by  special  order 
of  notice  by  court  on  bill,  requiring  either  (a)  jDersonal 
service  or  (b)  by  publication. 

3.  Service  on  non-residents  by  special  order  of  court 
on  bill  inserted  in  writ  of  attachment  as  in  actions  at  law. 

§  164.  Regular  service  as  of  course — 1.  By  personal 
service  of  bill  in  hand  or  reading  subpoena  or  leaving  at 
last  and  usual  place  of  abode  on  resident  defendants.  This 
is  the  most  common  method  of  service.  The  original 
process  issues  as  a  matter  of  course  and  is  delivered  to 
the  officer  ^^  with  a  copy  of  the  subpoena,  or  in  some 
states  with  bill  and  subpoena  both.^*'     The  method  of 


35.  Service  can  be  made  only  by 
officers  duly  qualified  to  serve  civil 
process  in  the  county  or  place  wliere 
the  defendant  resides  and  in  nearly 
all  cases  it  must  be  made  by  a  sher- 
iff or  one  of  his  deputies  since  the 
amount  in  controversy  in  suits  in 
equity  almost  always  exceeds  the 
limit  with  constables. 

In  Florida,  service  may  be  made 
by  the  sheriff  or  by  some  other  per- 
sons specially  appointed  by  the 
court  for  that  purpose.  In  the  lat- 
ter case,  the  person  serving  the 
process  shall  make  an  affidavit 
thereof  in  conformity  to  law.  Eule 
14.  See  to  the  same  effect  U.  S. 
Rule  15.  But  service  may  be  made 
by  special  deputy  appointed  by  the 
sheriff  without  proof  of  service  by 
affidavit.  Johnson  v.  Johnson,  23 
Fla.  413  (1887). 

In  New  Hampshire,  service  by 
copy  of  the  bill  may  be  made  on  a 
non-resident  by  a  private  individ- 
Whitehouse  E.  P.  Vol.  I — 21 


ual  upon  his  making  oath  to  the 
service  on  an  attested  copy  of  the 
bill  and  of  the  subpoena.  Stone  v. 
Anderson,  25  N.  H.  221   (1852). 

36.  Me.  R.  S.  Chap.  79,  Sec.  12; 
Pa.  Rule  8;  Tenn.  Code,  Sec.  6152. 
In  Alabama  a  copy  of  the  bill  is  not 
served  on  defendant,  but  he  may 
after  service  of  the  summons  obtain 
on  application  to  the  Register  a 
copy  of  the  bill  to  be  taxed  as  other 
costs.     Code,  Sees.   3098  and  3102. 

In  Michigan,  a  copy  of  the  bill 
need  not  be  served  on  the  defend- 
ant, but  the  subpoena  must  con- 
tain an  underwriting  designating 
against  what  defendant,  if  any,  a 
jiersonal  decree  is  asked.  Rule  4. 
The  service  of  a  subpoena  was  set 
aside  as  irregular  where  the  copy 
delivered  to  the  defendant  varied 
from  the  original  in  being  tested  on 
the  31st  day  of  October,  1840,  in- 
stead of  1843.  Gould  V.  Tryon, 
Walk.  Ch.  339   (1844). 


322 


EQUITY  PRACTICE 


service  is  generally  set  forth  in  detail  in  the  statutes  or 
chancery  rules,  and  consists  in  some  jurisdictions  of  read- 
ing or  stating  the  substance  of  the  subpoena  to  the  defend- 
ant,^'' in  others,  of  delivering  to  him  a  copy  of  the  sub- 
poena or  subpoena  and  bill.^^  Where  he  cannot  be  found 
it  is  generally  provided,  as  an  alternative,  that  a  copy 
may  be  left  at  his  usual  place  of  abode  in  the  presence  of 
some  adult  person  or  member  of  defendant's  family.^^ 


37.  Del.,  Eule  10;  Md.,  Eule  8; 
Tenn.  Code,  Sec.  6156.  Service  of 
process  on  an  agent  will  not  bind 
the  principal.  Caro  v.  Pensacola 
City  Co.,  19  Fla.  766  (1883).  Nor 
will  service  on  a  solicitor  bind  the 
client.  Pacific  E.  v.  Misouri  Pacific 
E.  Co.,  3  Fed.  772  (1883).  Com- 
pare Substituted  Service,  Sec.  173 
jwst,  p.  338. 

38.  Fla.,  Eule  12;  111.,  J.  &  A., 
11891,  Hurd's  St.,  Chap.  22,  Sec.  11; 
N.  H.,  Eule  88;  Mich.,  Eule  4;  Miss. 
Code,  Sec.  3926;  N.  J.,  Comp.  St. 
"Chancery,"  Sec.  5;  Pa.,  Eule  8; 
U.  S.,  Eq.  Eule  13. 

Delivery  of  one  copy  to  several 
defendants  collectively  is  sufficient 
where  they  are  all  present.  Green- 
man  V.  Harvey,  53  111.  386   (1870). 

The  words  "et  al."  may  be  used 
in  indorsing  the  title  of  the  cause 
on  the  copy  of  the  subpoena  in  the 
absence  of  statute  or  rule  to  the 
contrary.  Sadler  v.  Smith,  54  Fla. 
671    (1908). 

39.  Mass.,  Eule  4.  See  statutes 
and  rules  in  notes  37  and  38,  ante. 

Where  defendant  has'  left  the 
state  with  intent  to  remain  away 
for  an  indefinite  time,  the  house 
at  which  he  last  resided  i^  not  his 
actual  place  of  abode,  so  that  serv- 
ice of  a  subpoena  may  be  made  by 
leaving  it  there.     Hervey  v.  Har- 


vey, 56  X.  J.  Eq.  166,  56  N.  J.  Eq. 
424  (1897).  Delivering  a  copy  of 
a  subpoena  to  a  person  described 
as  "an  adult  person  who  is  a  resi- 
dent in  the  place  of  the  abode"  of 
the  defendant  is  not  a  compliance 
with  Equity  Eule  13,  which  in  de- 
fault of  actual  personal  service  re- 
quires the  delivery  of  a  copy  at 
the  defendant 's  dwelling  house  or 
usual  place  of  abode  "with  some 
adult  person  who  is  a  member  or 
resident  in  the  family."  Blythe 
v.  Hinckley,  84  Fed.  228  (1897). 
Subpoena  in  chancery  may  be 
served  on  a  married  woman  by  de- 
livering a  copy  to  her  husband  at 
her  usual  place  of  abode.  McLane 
V.  Piaggio,  24  Fla.  71  (1888).  But 
service  of  subpoena  on  the  husband 
alone  will  not  under  modern  prac- 
tice bind  the  wife.  Piggott  v.  Snell, 
59  111.  106  (1871). 

Where  a  statute  requires  that  th;? 
copy  be  left  at  the  defendant's 
usual  and  last  place  of  abode,  it  is 
not  sufficient  service  to  leave  it  at 
his  place  of  business.  Sweeney  v. 
Girolo,  154  Pa.  609  (1893).  And 
see  Hitch  v.  Gray,  1  Marv.  (Del.) 
400   (1895). 

The  usual  abode  of  a  married 
man  is  prima  facie  where  his  wife 
and  family  reside.  Missouri,  etc., 
Trust  Co.  V.  Norris,  61  Minn.  256 
(1895). 


VENUE,  FILING  AND  SERVICE 


323 


When  the  subpoena  is  issued  to  the  officer  the  most  cou 
venient  method  is  to  allow  the  original  bill  to  remain  on 
file  and  have  the  officer  make  his  return  on  the  original 
subpoena,  and  the  latter  is  retunaed  to  the  clerk  of  courts 
and  placed  on  file  with  the  original  bill. 

Where  the  statutes  and  rules  of  court  are  silent  on  the 
Subject  of  service,  the  question  would  seem  to  be  thrown 
back  upon  the  rules  of  general  chancery  practice  for 
determination,  at  least  where  the  courts  have  full 
chancery  powers  and  their  practice  is  derived  from  that 
of  courts  of  general  chancery  procedure.  The  practice 
in  the  English  chancery  courts  ajopears  to  have  permitted 
service  by  leaving  papers  with  defendant's  servant  or 
some  member  of  his  family  at  his  last  and  usual  place  of 
abode,^"  but  the  only  American  decisions  which  have  dis- 


The  usual  place  of  abode  means 
usual  place  of  abode  at  the  time  of 
service  of  writ.  Capehart  v.  Cun- 
Dingham,  12  W.  Va.  750  (1878). 

Where  a  person  is  in  jail  and  has 
no  other  residence,  the  jail  will  be 
held  to  be  his  place  of  abode  for  the 
purpose  of  service.  Dunn's  App., 
35  Conn.  82   (1868). 

Usual  place  of  abode  is  more  re- 
stricted than  residence,  and  means 
place  where  defendant  is  actually 
living  at  the  time  when  service  was 
made.  Mygatt  v.  Cole,  63  N.  J.  L., 
510  (1899). 

40.  Dan.  Ch.  Pr.  (6th  Am.  ed.) 
p.  442;  Birdwood  v.  Hart,  3  Price 
176  (1816);  Davidson  v.  March- 
ioness of  Hastings,  2  Keen  509, 
7  L.  J.  N.  S.,  Chap.  215,  2  Jur.  484 
(1838).  When  service  is  made  at 
the  dwelling  house,  however,  in 
general  chancery  practice  it  is  nec- 
essary that  it  should  be  the  place 
where  the  defendant  actually  re- 
sides, and  leaving  the  papers  at  the 
defendant's  ordinary  place  of  busi- 
ness if  he  does  not  reside  there  will 


not  be  good  service.  Dan.  Ch.  Pr. 
(6th  Am.  ed.)  p.  443  citing  Johnston 
v,  Macconnell,  3  Bibb  1.  It  must 
bo  his  actual  residence  and  if  he  is 
absent  at  the  time  it  must  be 
merely  a  temporary  absence.  Bick- 
ford  V.  Skewes,  9  Simons  428 
(1838);  Wagner  v.  Blanchet,  27 
N.  J.  Eq.  356  (1876);  Smith  v. 
Parke,  2  Paige  (X.  Y.)  298  (1830). 
A  summons  left  with  the  brother  of 
the  defendant  who  did  not  live  at 
defendant's  house  is  not  sufficient 
service..  Edgson  v.  Edgson,  3  DeG. 
&  S.  629. 

In  England,  by  Order  IX,  Eule  2, 
it  was  provided  that  the  court  could 
order  substituted  service  where  it 
was  made  to  appear  to  the  court 
or  judge  that  the  plaintiff  was  from 
any  cause  unable  to  effect  prompt 
service.  Under  this  rule  of  court, 
substituted  service  was  ordered 
where  defendant  left  the  jurisdic- 
tion after  a  writ  was  issued,  but 
before  it  could  be  served.  Jay  v. 
Budd,  1  Q.  B.  D.  12  (1898).  But 
the   court  refused  to  order  substi- 


324 


EQUITY  PRACTICE 


cussed  tlie  subject  liold  that  in  the  absence  of  statute  or 
rule  of  court  governing  the  practice,  personal  service  in 
hand  is  required.^ ^ 

The  regTilar  service  by  copy  of  bill  and  subpoena 
issuing  as  a  matter  of  course,  must  be  made  within  the 
territorial  jurisdiction  of  the  court  in  all  cases.  Service 
in  such  cases  outside  the  jurisdiction  is  of  no  avail,  and 
will  not  subject  the  defendant  to  the  jurisdiction  of  the 
court  unless  he  voluntarily  appears,  in  which  case  of 
course  the  defect  in  the  service  is  cured.^-    Objection  to 


tuted  service  where  a  writ  was  is- 
sued after  the  defendant  had  left 
the  jurisdiction,  on  the  ground  that 
defendant  should  be  served  as  an 
absent  defendant.  Wilding  v. 
Bean,  1  Q.  B.  D.  100  (1891). 

41.  Beck  V.  Ashkettle,  18  E.  I. 
374  (1893).  As  a  matter  of  prac- 
tice in  Maine,  where  there  is  no 
statute  or  rule  on  the  subject,  or- 
dinary service  by-  a  copy  of  bill 
and  subpoena  has  always  been 
made  by  personal  service  in  hand. 

The  essential  requisite  of  service 
in  hand  is  the  actual  personal  no- 
tice, consequently  if  the  officer  hav- 
ing given  the  defendant  actual 
notice  of  the  nature  of  the  com- 
plaint and  process  which  he  holds 
for  service  upon  him,  then  hands 
the  papers  to  the  defendant  but  the 
latter  refuses  to  take  them,  the  of- 
ficer would  seem  to  be  clearly  jus- 
tified in  leaving  the  papers  on  the 
premises  and  making  return  of 
service  in  hand. 

Rules  of  court  sometimes  pro- 
vide that  service  at  the  last  and 
usual  place  of  abode  will  be  suf- 
ficient when  personal  service  is 
impracticable  and  it  appears  that 
the  service  at  the  defendant 's 
abode  has  given  him  an  actual  no- 
tice.    Mass.  Rule  4. 


42.  McEwan  v.  Zimmer,  38  Mich. 
765,  31  Am.  Rep.  332  (1878);  Erick- 
son  V.  Nesmith,  46  N.  H.  375 
(1866);  Dunn  v.  Dunn,  4  Paige 
(N.  Y.)  425  (1834);  Picquet  v. 
Swan,  5  Mason  (U.  S.)  561  (1830); 
Jennings  v.  Johnson,  148  Fed.  337 
(1906). 

In  general  chancery  practice, 
service  made  on  Sunday  is  not 
good.  Machreth  v.  Nicholson,  19 
Ves.  367.  But  by  statute  in  some 
states,  service  may  be  made  on 
Sunday,  under  certain  circum- 
stances. Tennessee  Code  (1858) 
Sec.  2824-2826;  Acts  of  1885,  Ch. 
53.  Process  returnable  on  Sun- 
day is  irregular.  Gould  v. 
Spencer,  5  Paige  (X.  Y.)  541 
(1836).  But  service  of  process  on 
legal  holidays  is  not  invalid  unless 
expressly  made  so  by  statute. 
Glenn  v.  Eddy,  51  N.  J.  L.  255 
(1889);  Horn  v.  Perry,  11  W.  Va. 
694    (1877). 

Under  statutes  of  some  states, 
process  may  be  properly  served  on 
the  return  day.  Spragins  v.  W.  Va. 
Cent.,  etc.,  R.  Co.,  35  W.  Va.  139 
(1891). 

Where  service  may  be  made  by 
reading  the  summons  it  is  a  good 
service  even  though  defendant  re- 
fuses to  stay  to  hear  it.    Boggs  v. 


VENUE,  FILING  AND  SERVICE 


325 


insufficient  service  should  be  taken  by  plea  in  abatement 
or  to  vacate  the  service,  rather  than  by  plea  to  the  juris- 
diction.^^ 

§  165.  — Service  on  infants.  The  law  as  to  what  will 
constitute  sufficient  service  on  an  infant  defendant  seems 
to  be  in  rather  a  mixed  state,  but  the  usual  and  best 
practice  in  making  ordinary  service  is  unquestionably  to 
serve  personally  on  the  infant  ^^  whenever  practicable  and 


Inter-Mining  &  Smelting  Co.,  105 
Md.  371  (1907);  Story  v.  Ware,  35 
Miss.  399,  72  Am.  Dec.  125  (1858); 
Slaght  V.  Bobbins,  13  N.  J.  L.  340 
(1833). 

Where  a  summons  is  read  in  hear- 
ing of  the  defendant,  although  the 
ofifieer  addressed  himself  by  mistake 
to  his  clerk,  it  is  sufficient  service. 
Metzger  v.  Huntington,  51  111.  App. 
377  (1893). 

Where  two  defendants  both  re- 
side in  the  same  house,  it  is  not 
sufficient  service  of  the  writ  upon 
them  to  give  a  single  copy  thereof 
to  one  of  them  at  the  dwelling 
house  of  both.  Bugbee  v.  Thomp- 
son, 41  N.  H.  183   (1860). 

Service  of  process  by  merely 
laying  it  on  the  body  of  a  man  who 
is  too  sick  to  understand  it  is  in- 
valid. People  V.  Judge  of  Superior 
Court,  38  Mich.  310  (1878). 

Where  both  reading  and  leaving 
a  copy  is  required,  service  is  not 
complete  without  both.  Law  v. 
Groones,  158  111.  492  (1895).  But 
where  the  statute  requires  only  the 
leaving  of  a  copy,  the  fact  that  the 
officer  reads  the  process  to  the  de- 
fendant will  not  invalidate  the 
service.  Bozarth  v.  Largent,  128 
111.  95  (1889). 

43.  Gilson  v.  Appleby,  78  N.  J. 
E.  96  (1911);  Ewald  v.  Ortynsky, 
77  N.  J.  E.  76  (1910);  Lanning  v. 


Twining,  71  N.  J.  E.  573  (1906). 
While  at  law  an  abatement  of  the 
writ  abates  the  suit,  in  equity  the 
rule  is  different  since  the  sub- 
poena is  a  mere  notice  and  may 
be  abated  without  affecting  the 
bill.     Ewald  v.  Ortynsky,  supra. 

Want  of  service  cannot  be  taken 
advantage  of  by  demurrer  where 
the  court  has  jurisdiction  of  the 
subject-matter  of  the  suit.  Math- 
ieson  v.  Craven,  164  Fed.  471 
(1908). 

The  court  may  set  aside  a  serv- 
ice of  a  subpoena  which  has  by 
mistake  been  made  on  a  person 
other  than  the  defendant  and  may 
order  the  issuance  of  a  new  writ 
and  its  service  on  defendant. 
Ewald  V.  Ortynsky,  78  N.  J.  E.  527 
(1911). 

44.  McDermott  v.  Thompson,  29 
Fla.  299  (1892)  (personal  service  in 
presence  of  legal  guardian  or  per- 
son having  charge  of  infant) ;  Bon- 
nell  V.  Holt,  89  111.  71  (1878);  Tay- 
lor v.  Lovering,  171  Mass.  303 
(1889);  Ingersoll  v.  Ingersoll,  42 
Miss.  155  (1868);  contra,  Ferrell  v. 
Ferrell,  53  W.  Va.  515  (1903) 
(statute). 

Failure  to  serve  infant  is  not 
cured  by  appointment  of  a  guard- 
ian ad  litem  who  appears  or  an- 
swers for  it.  Robertson  v.  Robert- 
son, 2  Swan   (Tenn.)   197   (1852). 


326 


EQUITY  PRACTICE 


tlieu  to  give  notice  to  or  serve  in  addition  upon  the  general 
guardian,  or  parent  or  person  having  custody  of  the 
infant,^^  if  there  is  one;  if  not  there  must  be  a  prayer  in 


A  decree  on  an  infant  without 
service  is  void  in  some  states  for 
lack  of  jurisdiction.  Terrell  v. 
Weymouth,  32  Fla.  255  (1893); 
Chambers  v.  Jones,  72  111.  275 
(1874);  Linnville  v.  Darby,  1  Baxt. 
(Tenn.)  306  (1872).  But  not  if  the 
infant  was  represented  in  the  pro- 
ceeding by  guardian  ad  litem  and 
the  suit  was  not  personal.  Manson 
v.  Duncanson,  166  U.  S.  533,  41  L. 
ed.  1105   (1896). 

Non-resident  or  absent  infants 
may  be  served  by  publication  like 
adults,  even  though  not  expressly 
named  in  statutes  providing  for 
publication.  Clark  v.  Gilmer,  28 
Ala.  265  (1856);  Hale  v.  Hale,  146 
HI.  227,  20  L.  R. 'A.  247  (1893); 
Bryan  v.  Kennett,  113  U.  S.  179, 
28  L.  ed.  908  (1884). 

In  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  144,  it  is  said  that  "ordinary 
service  upon  an  infant  defendant  is 
effected  in  the  same  manner  as 
upon  an  adult,"  but  in  the  same 
note  which  is  cited  as  authority  for 
this  statement  are  cases  holding 
that  service  of  a  subpoena  on  the 
father  or  mother  of  a  minor  de- 
fendant is  sufficient.  (Kirwan  v. 
Kirwan,  1  Hogan  264;  Thompson 
V.  Jones,  8  Ves.  144.  See  also 
Baker  v.  Holmes,  1  Dick.  18).  In 
Tennessee  service  on  the  general 
guardian  alone  has  been  held  suf- 
ficient,— Britain  v.  Humphrey,  5 
Humph.  315  (1844),  but  in  Cowan 
V.  Anderson,  7  Cold.  (Tenn.)  284 
(1869),  it  was  declared  that  that 
practice  went  to  the  utmost  verge 
of  the  law  and  was  not  to  be  en- 
couraged.     In   most    of   the    states 


the  matter  is  regulated  by  statute, 
and  such  statutes  in  the  majority 
of  the  states  provide  that  service 
shall  be  made  upon  the  minor  and 
upon  the  guardian  also.  See 
Thompson  v.  McDermott,  19  Fla. 
852  (1892);  Pierson  v.  Hitchner, 
25  N.  J.  Eq.  130  (1874);  and  stat- 
utes cited  in  note  45,  post.  The 
best  rule  on  principle  and  authority 
would  therefore  seem  to  be  that 
given  in  the  text  above,  viz:  if  the 
infant  has  a  general  guardian,  serve 
personally  on  infant  and  guardian 
both,  if  no  general  guardian  of  the 
infant,  then  pray  for  appointment 
of  guardian  ad  litem.  But  appoint- 
ment of  guardian  ad  litem  before 
service  on  infant  is  a  nullity. 
Johnson  v.  McCabe,  42  Miss.  255 
(1868);  Linnvill  v.  Darby,  1  Baxt. 
(Tenn.)  306  (1872).  If  ordinary 
personal  service  for  any  reason  can- 
not be  made  upon  the  infant,  the 
safest  way  would  be  to  obtain  a 
special  order  of  notice  from  the 
court,  suited  to  the  circumstances, 
which  the  court  has  the  unques- 
tionable power  to  grant;  and  then 
a  legal  service  is  insured. 

45.  McDermott  v.  Thompson,  29 
Fla.  299  (1892);  Taylor  v.  Lever- 
ing, 171  Mass.  303  (1898);  Gibson 
V.  Currier,  83  Miss.  234  (1903); 
Hatch  V.  Ferguson,  57  Fed.  966 
(1893).  If  such  person  is  a  resi- 
dent within  the  state.  Johnson  v. 
McCabe,  42  Miss.  255  (1868). 
Where  such  requirements  exist, 
service  on  infant  alone  is  not  suf- 
ficient. Wells  V.  American  Mort- 
gage Co.,  109  Ala.  430  (1895).  See 
also  Ala.,  Rule   20;   Del.,  Rule   11; 


VENUE,  FILING  AND  SERVICE 


327 


the  bill  or  a  motion  made  for  appointment  of  a  guardian 
ad  litem,  after  which  appointment  of  course  there  is  no 
need  of  any  additional  service  upon  the  latter.^^ 

§  166.  — Service  on  insane  persons.  The  rule  in  regard 
to  insane  persons,  whether  they  have  been  adjudged 
insane  or  not,  is  that  where  there  is  no  general  guardian, 
personal  service  should  be  made  upon  the  insane  person,^^ 
and  then  a  prayer  should  be  inserted  or  a  motion  made  for 
appointment  of  a  guardian  ad  litem.  But  where  there  is  a 
general  .guardian,  service  upon  him  alone  is  held  sufficient 
in  some  jurisdictions.'^^ 


Md.,  Rule  8;  Me.,  R.  S.,  Chap.  69, 
Sec.  14;  Miss.,  Code,  Sec.  3929. 

46.  Jones  v.  Drake,  2  Ilayw. 
(Tenn.)  237  (1815).  But  see  Mc- 
Dermott  v.  Thompson,  29  Fla.  299 
(1892). 

47.  Brooks  v.  Jobling,  2  Hare, 
155;  Taylor  v.  Lovering,  171  Mass. 
303  (1898)  ;  Gerster  v.  Hilbert,  38 
Wis.    609    (1875). 

In  Pennsylvania,  service  must 
be  made  on  the  next  of  kin 
where  a  lunatic  has  no  committee. 
Brink  v.  Wolf,  24  Pa.  Co.  Ct.  197. 
Service  upon  the  son  of  a  lunatic 
who  managed  the  lunatic 's  estate 
was  sufficient  where  the  lunatic 
was  not  allowed  to  be  seen.  Steig- 
ers  V.  Brent,  50  Md.  213,  33  A.  R. 
317  (1887).  The  service  in  such 
cases,  however,  is  a  mere  formality 
and  amounts  to  nothing  without  the 
appointment  of  a  guardian  ad  litem. 
Litchfield's  Appeal,  28  Conn.  127 
(1859).  If  personal  service  is  im- 
practicable or  inadvisable  as  being 
dangerous  to  the  lunatic,  it  is  best 
to  apply  for  a  special  order  of 
court.  If  an  insane  person  is  in 
an  asylum,  substituted  service  may 
be  made  on  the  keeper  or  physician 
of  the  asylum  in  case  he  refuses  to 
permit     service     on     the     lunatic. 


Raine  v.  Wilson,  L.  R.  16  Eq.  576 
(1873). 

48.  Redmond  v.  Peterson,  102 
Cal.  595,  41  A.  S.  R.  204  (1894); 
Jones  V.  Crowell,  143  Ind.  218 
(1895);  Hulings  v.  Laird,  21  Pa. 
265  (1853),  holding  service  on 
guardian  alone  sufficient.  But  see 
Ingersoll  v.  Harrison,  48  Mich.  234 
(1882),  holding  that  an  insane  per- 
son may  be  served  personally  even 
though  a  guardian  has  been  ap- 
pointed, and  Potts  v.  Hines,  57 
Miss.  735  (1880),  holding  that  both 
lunatic  and  guardian  must  be 
served. 

In  Massachusetts  it  is  held  that 
the  insane  person  should  be  per- 
sonally served  and  then  the  general 
guardian  notified  of  the  proceeding 
as  in  the  case  of  an  infant.  Tay- 
lor v.  Lovering,  171  Mass.  303 
(1898).  And  in  some  other  states, 
the  same  method  of  service  is  used 
as  in  the  case  of  infants.  See 
Maryland   Code,   Sec.   123. 

In  Mississippi,  if  the  defendant 
be  an  inmate  of  an  insane  hospital 
and  the  superintendent  shall  certify 
that  he  is  mentally  incapable  of 
responding  to  process,  service  of 
process  on  such  person  shall  not  be 
required;  and  the  certificate  of  the 


328 


EQUITY  PRACTICE 


§  167.  — Corporations.  Ordinary  service  on  domestic 
corporations  should  be  made  on  some  one  of  the  principal 
officers  of  the  corporation  such  as  the  president,  secretary, 
treasurer,  cashier  or  clerk,  director,  or  general  agent. ^^ 


superintendent  shall  be  endorsed  on 
or  attached  to  the  process  for  such 
defendant,  and  shall  be  in  lieu  of 
service   thereon.     Code,  Sec.   3930. 

49.  Ala.,  Eule  21;  Del.,  Rule  12; 
Mass.  R.  L.,  Chap.  167,  Sec.  36; 
Me.  R.  S.,  Chap.  83,  See.  19;  Miss., 
Code,  Sec.  3932;  Tenn.,  Code,  Sec. 
4539,  4532;  King  v.  Harbor  Board, 
57  Ala.  135  (1876);  Martin  v.  Atlas 
Estate  Co.,  72  N.  J.  Eq.  416  (1906) ; 
Lewis  V,  Glenn,  84  Va.  947  (1888); 
Frazien  v.  Kanawha,  etc.,  R.  Co., 
40  W.  Va.  224,   (1895). 

At  common  law,  service  ou  a 
municipal  corporation  was  made  on 
the  mayor  or  other  head  officer. 
People  V.  Cairo,  50  111.  154  (1869). 

In  Illinois,  process  may  be  served 
on  a  director  when  the  president 
cannot  be  found  in  the  county. 
See  St.  Louis  Coal  Co.  v.  Edwards, 
103  111.  472   (1882). 

In  Alabama,  a  single  director  is 
not  the  head  or  managing  agent  of 
the  corporation  so  as  to  make  serv- 
ice on  him  sufficient.  Alabama  R. 
Co.  V.  Burns,  43  Ala.  192  (1869). 

Where  service  is  authorized  upon 
officers  of  corporations  generally, 
service  may  be  made  on  secretary, 
Talladega,  etc..  Insurance  Co.  v. 
Woodward,  44  Ala.  287  (1870). 
The  vice  president  is  a  "  chief  of- 
ficer." Ball  V.  Warrington,  87 
Fed.  695  (1898).  Or  if  not  a  chief 
officer,  he  is  an  agent  within  the 
meaning  of  the  term  as  used  in  the 
statute.  Norfolk,  etc.,  R.  Co.,  v. 
Cottier,  83  Va.  512  (1887). 

The  term  "agent"  means  some 
principal    officer    who    has    a    con- 


trolling authority  in  some  particu- 
lar department,  and  having  inde- 
pendent powers.  Lake  Shore,  etc., 
V.  Hunt,  39  Mich.  469  (1878);  Fair- 
bank  v.  Cincinnati,  etc.,  R.  Co.,  54 
Fed.  420   (1892). 

Under  statutes  providing  for 
service  on  "general  agents"  of  the 
company,  a  "general  agent"  is  one 
who  has  power  to  transact  all  the 
business  of  the  company  of  a  par- 
ticular kind.  Toledo,  etc.,  R.  Co.  v. 
Owen,  43  Ind.  405  (1873). 

The  term  "managing  agent" 
means  an  agent  employed  by  the 
corporation  and  representing  it  in 
some  capacity,  and  acting  for  it  to 
a  limited  extent  at  least.  Atlas 
Glass  Co.  V.  Ball,  etc.,  Glass  Mfg. 
Co.,  87  Fed.  418  (1898). 

Service  on  a  traveling  salesman 
is  sufficient  under  statute  authoriz- 
ing service  upon  agent  of  the  cor- 
poration. Moinett  v.  Burnham,  143 
Mich.  489   (1906). 

But  a  subordinate  agent  or  a 
mere  clerk  or  bookkeeper  is  not  a 
person  on  whom  process  can  be 
served  as  a  representative  of  a  cor- 
poration, in  the  absence  of  a  stat- 
ute authorizing  such  service.  Dock 
V.  Elizabethtown,  etc.,  Mfg.  Co., 
34  N.  J.  L.  312   (1870). 

Any  officer  or  agent  on  whom  the 
statute  authorizes  service  is  au- 
thorized to  acknowledge  in  writing 
on  behalf  of  his  corporation  the 
fact  of  such  service.  Talladega, 
etc.,  Insurance  Co.  v.  Woodard,  44 
Ala.  287   (1870). 

An  attorney  retained  by  a  cor- 
poration   to    represent   it   may   ac- 


VENUE,  FILING  AND  SERVICE 


329 


Statutes  enumerating  a  list  of  officers  upon  whom  service 
may  be  made  are  sometimes  construed  to  authorize  service 
on  subordinate  officers  only  upon  sheriff's  return  that  the 
head  officers  could  not  be  found,^"  Service  upon  such 
officer  should  be  a  service  in  hand,  service  by  leaving  it 
at  his  last  abode  or  at  his  office  not  being  sufficient  except 
where  the  statute  authorizes  it.  Service  in  some  states 
in  the  case  of  corporations  must  be  made  a  longer  time 
before  the  return  day  than  in  the  case  of  individuals.^^ 


knowledge  service.  Beebe  v.  Beebe 
Co.,  64  N.  J.  L.  497  (1900). 

When  a  railroad  is  in  the  hands 
of  a  receiver,  service  on  the  agents 
of  the  corporation  is  sufficient. 
Central  Trust  Co.  v.  St.  Louis,  etc., 
R.  Co.,  40  Fed.  426  (1889).  Or  the 
court  may  make  an  order  that  cer- 
tain persons  or  agents  be  served. 
Ibid. 

Service  on  the  agents  of  the  cor- 
poration is  good  even  though  they 
were  appointed  before  the  receiver 
was  appointed.  Simpson  v.  East 
Tenn.,  etc.,  E.  Co.,  89  Tenn.  304 
(1890). 

Service  on  an  officer  whose  term 
of  office  has  expired  is  not  good 
service.  Equitable  Produce,  etc., 
Exchange  v.  Keyes,  67  App.  460 
(1896). 

But  service  on  the  last  elected 
or  late  proper  officer  of  a  corpora- 
tion is  sufficient  where  there  is 
failure  or  refusal  to  elect  other 
officers.  Parker  v.  Bethel  Hotel 
Co.,  96  Tenn.  252,  31  L.  R.  A.  706 
(1895). 

Service  cannot  be  made  on  the 
mayor  of  a  city  who  has  resigned 
when  no  successor  has  been 
chosen.  Knowlton  v.  Watertown, 
130  U.  S.  327,  32  L.  ed.  956  (1888). 
But  a  resignation  for  the  purpose 
of  preventing  service  will  not  de- 


feat the  rights  of  a  third  party. 
Badger  v.  United  States,  93  U.  S. 
599,  23  L.  ed.  991  (1876). 

Where  the  officers  of  a  corpora- 
tion misinformed  the  sheriff  as  to 
who  was  president  and  service  was 
made  upon  another  man,  the  corpo- 
ration will  be  estopped  from  deny- 
ing that  service  was  made  on  the 
proper  officer.  Wilson  v.  Califor- 
nia Wine  Co.,  95  Mich.  117  (1903). 

Where  the  form  of  service  pre- 
scribed by  the  statute  could  have 
been  followed,  but  was  not,  it  will 
be  unavailing  to  assert  that  the 
corporation  had  actual  notice. 
Mack  V.  New  York,  etc.,  R.  Co., 
172  Mass.  185   (1898). 

50.  Alabama  &  Tenn.  R.  Co.  v. 
Burns  &  Co.,  43  Ala.  169  (1869); 
Drew  Lumber  Co.  v.  Walter,  45 
Fla.  252  (1903);  Toledo,  etc.,  R. 
Co.  v.  Owen,  43  Ind.  405  (1873). 
Contra,  Norfolk,  etc.,  Co.  v.  Cot- 
trell,  83  Va.   512    (1887). 

51.  In  Maine,  E.  S.,  Chap.  83, 
See.  19,  providing  for  service  on  a 
corporation  applies  in  the  case  of 
domestic  corporations  to  service  of 
writs  only,  but  by  analogy  and  ac- 
cording to  the  universal  practice 
in  that  state,  thirty  days'  notice 
is  required  in  all  suits  in  equity 
as  well  as  at  law  on  domestic  cor- 
porations even  when  service  is  by 


330 


EQUITY  PRACTICE 


In  regard  to  foreign  corporations,  statutes  generally 
provide  a  mode  of  service  upon  their  agents  in  the  state 
as  a  condition  of  doing  business  therein,  which  shall  sub- 
ject them  to  the  jurisdiction.-^'-     Such  statutes  are  inap- 


copy  of  bill  and  subpoena.  Where 
the  bill  is  inserted  in  a  writ  the 
statute  is  directly  applicable.  And 
as  to  foreign  corporations  doing 
business  in  the  state  thirty  days' 
notice  is  expressly  required  by  the 
statute.  So  when  service  is  or- 
dered by  court  it  is  the  practice 
to  require  thirty  days  on  all  cor- 
porations. 

In  Massachusetts,  service  in  ac- 
tions against  a  county,  city,  town, 
parish,  or  religious  society  or 
against  proprietors  of  wharves, 
general  fields,  or  real  estate  lying 
in  common  shall  be  made  thirty 
days  at  least  before  the  return 
day.     E.  L.,  Chap.  167,  Sec.  28. 

52.  Eeyer  v.  Odd  Fellows,  etc., 
Association,  157  Mass.  367  (1892); 
Pollock  v.  German,  etc..  Insurance 
Co.,  132  Mich.  225  (1903).  And 
see  statutes  regulating  foreign  cor- 
porations. 

At  common  law,  service  of  proc- 
ess could  not  be  made  on  a  foreign 
corporation  by  service  on  its  offi- 
cers or  agents  outside  of  the  state 
which  created  it.  Andrews  v. 
Michigan  Central  R.  Co.,  99  Mass. 
534,  97  Am.  Dec.  51  (1868). 

A  statute  which  provides  for 
service  of  process  on  any  corpora- 
tion "or  upon  any  incorporated 
company"  is  properly  construed  as 
including  foreign  as  well  as  domes- 
tic corporations.  Societe  Fonciere 
V.  Milliken,  135  U.  S.  304,  34  L.  ed. 
208  (1898).  See  as  to  construction 
of  Tennessee  statutes.  Telephone 
Co.  V.  Turner,  88  Tenn.  265  (1889). 

Three  things  must  concur  to  give 


the  Federal  courts  jurisdiction  of 
a  foreign  corporation  under  such 
statutes.  1.  It  must  appear  as  a 
matter  of  fact  that  the  corporation 
is  carrying  on  its  business  in  such 
dominion,  state  or  district.  2. 
That  such  business  is  transacted 
or  managed  by  some  agent  or  offi- 
cer appointed  by  and  representing 
the  corporation  in  such  state.  3. 
The  existence  of  some  local  law 
making  such  foreign  corporation 
amenable  to  suits  there  as  a  con- 
dition of  doing  business  in  the 
state.  U.  S.  V.  American  Bell 
Telephone  Co.,  29  Fed.  17  (1886). 
And  where  these  facts  exist,  the 
Federal  courts  are  not  deprived  of 
jurisdiction  merely  because  the 
statutes  of  the  state  confer  no  au- 
thority upon  any  court  to  issue 
process  against  a  foreign  corpora- 
tion at  the  suit  of  a  person  not  re- 
siding within  the  state  and  for  a 
cause  of  action  not  arising  therein. 
Barrow  Steamship  Co.  v.  Kane,  170 
U.  S.  100,  42  L.  ed.  964  (1898). 

Statutes  providing  for  the  desig- 
nation of  agents  for  the  service  of 
process  on  foreign  corporations  are 
not  exclusive  unless  the  statute 
makes  them  so,  and  service  may  be 
made  on  the  officers  and  representa- 
tive agents  in  the  jurisdiction. 
Conn.,  etc..  Insurance  Co.  v.  Sprat- 
lay,  99  Tenn.  322,  44  L,  R.  A.  442, 
affirmed  172  U.  S.  602,  43  L.  ed. 
569    (1899). 

It  is  not  necessary  that  the  agent 
designated  under  these  statutes  be 
a  person  authorized  to  exercise 
any   of  the   contractual  powers   of 


VENUE,  FILING  AND  SERVICE 


331 


plicable  to  a  corporation  which  does  not  transact  business 
witliin  the  State  although  its  agent  be  served  with  process 
while  physically  within  the  State.^-^  Some  classes  of 
foreign  corporations  are  obliged  to  designate  a  state 
officer  such  as  the  secretary  of  state,  auditor,  or  insurance 
commissioner  as  their  attorney  to  receive  the  service  of 
process.^^ 


the  corporation.  Nilms  v.  Edin- 
burg,  etc.,  Mortgage  Co.,  92  Ala. 
157  (1890).  But  service  must  be 
upon  an  agent  who  represents  the 
corporation  with  respect  to  the 
business  it  does  within  the  state. 
Central,  etc.,  E.  Co.  v.  Eichberg, 
107  Md.  363,  14  L.  E.  A.  (N.  S.) 
389  (1908).  And  an  agent  cannot 
acknowledge  service  unless  the 
statute  expressly  authorizes  it. 
New  Eiver  Mineral  Co.  v.  Seeley, 
120  Fed.   193    (1903). 

Eeturn  of  service  by  the  officer 
on  agent  of  a  foreign  corporation 
must  set  forth  all  the  facts  neces- 
sary to  show  that  the  person  ac- 
cepting the  service  is  one  on  whom 
a  binding  service  may  be  made. 
Adkins  v.  Globe  Insurance  Co.,  45 
W.  Va.  384  (1898). 

52a.  Midland  Pacific  E.  Co.  v. 
McDermid,  91  111.  170  (1878); 
Newell  V.  Great  Western  E.  Co., 
19  Mich.  335  (1869);  Camden 
Eolling  Mill  Co.  v.  Swede  Iron 
Co.,  3  Vroom  (N.  J.)  15  (1866); 
Phillips  V.  Library  Co.,  141  Pa. 
462  (1891);  Goldey  v.  Morning 
News  Co.,  156  U.  S.  518,  39  L.  ed. 
517  (1894);  Hazeltine  v.  Miss.  Val- 
ley Fire  Insurance  Co.,  55  Fed.  743 
(1893).  Such  statutes  do  not  give 
jurisdiction  over  suits  arising  out- 
side of  the  territory  and  having 
no  connection  with  the  business 
done  there.  Central  E.  &  Banking 
Co.  V.  Carr,  76  Ala.  388,  52  A.  E. 


339  (1884);  Sawyer  v.  No.  Ameri- 
can Life  Insurance  Co.,  46  Vt.  697 
(1874).  Statutes  sometimes  ex- 
pressly provide  this.  Grand 
Trunk,  etc.,  E.  Co.  v.  Circuit  Judge, 
106  Mich.  248  (1895). 

53.  Osborne  v.  Shawmut  Insur- 
ance Co.,  51  Vt.  278  (1878);  Pem- 
bina, etc.,  Silver  Mining  Co.  v. 
Penn.,  125  U.  S.  181,  31  L.  ed.  650 
(1887);  St.  Mary's,  etc.,  Petroleum 
Co.  V.  West  Virginia,  203  U.  S.  183, 
51  L.  ed.  144  (1906);  and  see  stat- 
utes of  the  various  states. 

A  foreign  corporation  cannot 
frustrate  service  by  revocation  of 
its  agency  within  the  state  par- 
ticularly as  against  a  person  with- 
out knowledge  of  the  revocation. 
Capen  v.  Pacific  Mutual  Insurance 
Co.,  25  N.  J.  L.  67,  64  Am.  Dee. 
112    (1855). 

Service  on  the  state  officer,  how- 
ever, is  not  sufficient  where  he  has 
not  been  designated  and  the  de- 
fendant has  not  chosen  to  appear. 
Eothrock  v.  Dwelling  House  Insur- 
ance Co.,  161  Mass.  423,  42  A.  S.  E, 
418,  23  L.  E.  A.  863  (1894);  Lu- 
brano  v.  Imperial  Counsel,  20  E.  I. 
27,  38  L.  E.  A.  546  (1897);  Vance 
V.  Pullman  Co.,  160  Fed.  707 
(1908). 

Where  a  foreign  insurance  com- 
pany was  obliged  by  statute  to  file 
an  irrevocable  power  of  attorney 
with  the  superintendent  of  insur- 
ance,  service   of   process   upon   the 


332 


EQUITY  PRACTICE 


§  168.  — (2)  Service  by  inserting  bill  in  writ  of  attach- 
ment and  serving  as  in  actions  of  law  on  resident) 
defendants.  Statutes  in  some  states  provide  that  suits  in 
equity  may  be  commenced  by  inserting  the  bill  in  equity 
in  an  original  writ  of  summons  or  of  summons  and  attach- 
ment,^^ and  sometimes  by  trustee  process.^-^  In  such  case 
the  writs  are  filled  out,  made  returnable  and  serv^ed  like 
writs  at  law.^^ 

§  169.  — (3)  Service  by  order  of  notice  issuing  out  of 
clerk's  office  as  of  course  requiring  either*  (a)  personal 
service  or  (b)  service  by  publication  on  non-residents. 
The  order  in  this  class  of  cases  issues  from  the  clerk's 
ofl&ce  as  a  matter  of  course  ^'  on  application  of  the  plaintiff 


latter  after  the  company  had 
ceased  to  do  business  within  the 
state  Tvill  not  bind  the  company. 
Mutual  Reserve  Fund  Life  Associa- 
tion V.  Boyer,  62  Kan.  31,  50  L.  R. 
A.   538    (1909). 

Service  on  any  agent,  or  at  least 
on  the  only  one  who  is  found  in 
the  state,  is  sufficient  against  a 
foreign  corporation  which  has 
failed  to  comply  with  a  statute  re- 
quiring it  to  establish  an  office  and 
appoint  an  agent  on  whom  service 
may  be  made.  Hagerman  v.  Em- 
pire Slate  Co.,  97  Pa.  534  (1881). 

54.  Me.,  R.  S.,  Chap.  79,  Sec.  12; 
Mass.  Acts,  1909,  Chap.  183,  Sec.  8; 
N.  H.,  P.  S.,  1901,  Chap.  205,  See. 
11. 

55.  Mass.  Acts,  1909,  Chap.  183, 
Sec.  8;  N.  H.,  P.  S.,  1901,  Chap. 
205,  Sec.  11. 

56.  N.  H.,  Rule  88;  A^t.,  P.  S., 
1906,  Chap.  65,  Sec.  1,243. 

It  will  be  remembered  that  suits 
at  law  are  begun  when  the  writ  is 
made  with  the  intention  of  service, 
and  a  suit  in  equity  when  the  bill 
is  filed.  Clark  v.  Slaten,  63  X.  H. 
402    (1885).     Therefore  where   the 


procedure  on  writs  at  law  is  fol- 
lowed, service  would  precede  fil- 
ing. But  in  Massachusetts,  when 
a  suit  in  equity  is  commenced  by 
an  original  writ,  such  writ,  with 
the  bill  or  petition  attached  there- 
to, may  at  any  time  after  service 
thereof,  before  the  return  day,  be 
entered  in  the  court  to  which  it  is 
returnable,  and  thereupon  the  court 
may  make  such  orders  as  to  attach- 
ment, arrest  and  injunction,  or  for 
discharging  from  arrest,  or  for  dis- 
solving an  attachment  or  injunc- 
tion, or  such  other  orders  as  the 
court  would  have  had  power  to 
make  if  the  suit  had  been  com- 
menced by  bill  or  petition.  Acts 
and  Resolves,  1909,  Chap.  183, 
Sec.  8. 

In  some  states  a  bill  in  equity 
cannot  be  inserted  in  a  capias  writ 
and  the  defendant  arrested  there- 
on. Carter  v.  Porter,  71  Me.  167 
(1880).  But  see  Massachusetts 
statute  above  quoted,  contra. 

57.  Alabama.  Code,  Sees.  3,104, 
3,105,  3,106;  Rule  22. 

niinois.  J.  &  A.,  11892;  Kurd's 
Stat.,  Chap.  12,  Sec.  12;  J.  &  A., 


VENUE,  FILING  AND  SERVICE 


333 


to  the  clerk.  It  should  be  made  to  appear  by  the  bill 
itself  under  oath  or  affidavit  filed  therewith  that  the 
defendant  is  a  non-resident.'^^  The  length  of  notice 
required  is  prescribed  by  the  statute  or  rule  of  court 
according  to  the  distance  of  the  defendant's  residence 
from  the  court,  and  is  applicable  only  in  the  case  of  non- 
residents. Service  is  usually  required  to  be  made  either 
by  serving  a  copy  of  the  order  personally  upon  the  defend- 
ant if  possible,  or  else  by  publication. 

When  personal  service  is  to  be  made  it  is  usually 
effected  by  some  officer  ^^  qualified  to  serve  civil  process 
in  the  county  where  the  non-resident  defendant  resides, 
by  leaving  an  attested  copy  of  the  order  with  such  defend- 
ant, and  is  proved  by  his  return  supplemented  by  a 


TI  7,856;  Kurd's  Stat.,  Chap.  100, 
Bee.    9. 

Maine.     Rule   7. 

Massachusetts.     Eule  5. 

Mississippi.  Code,  Sees.  3,920  to 
3,922. 

New  Jersey.     Rules  54  to  57. 

Tennessee.  Code,  Sees.  6,164  to 
6,169. 

Vermont.  P.  S.,  Sees.  1,245, 
1,246,  as  amended^  by  Acts  of  1908 
and   1910. 

West  Virginia.     Code,  Sec.  4747. 

58.  An  order  for  service  by  pub- 
lication can  be  predicated  only  on 
a  bill  filed  and  on  the  statutory 
affidavit.  Benner  v.  Street,  32  Fla. 
274  (1893);  Hodgen  v.  Guttery,  58 
111.   431    (1871). 

The  affidavit  of  a  non-residence 
is  an  essential  preliminary  to  the 
issuance  of  an  order  of  publication. 
Piatt  V.  Stewart,  10  Mich.  260 
(1862). 

If  there  is  a  variance  of  the  peti- 
tion, the  former  proceeding  upon 
the  theory  of  residence  and  the 
latter  upon  that  of  non-residence 
in  the  state,  the  service  by  publi- 


cation is  insufficient.  Ladd  v. 
Diekirson,  147  111.  App.  324  (1909). 

The  affidavit  of  a  corporation 
may  be  made  by  the  local  attorney. 
Fayette  Land  Co.  v.  Louisville  & 
N.  R.  Co.,  93  Va.  274  (1906). 

An  affidavit  that  defendant  has 
left  his  residence  in  the  state  four 
months  before  and  has  not  re- 
turned, irrespective  of  any  proof 
of  inability  to  make  service  upon 
him,  is  insufficient  to  authorize 
service  by  publication.  Torrance 
v.  Hicks,  32  Mich.  307   (1875). 

The  place  of  residence  of  non- 
resident defendant  may  be  stated 
in  the  affidavit  on  information  and 
belief  and  it  is  not  necessary  to 
allege  that  he  cannot  be  served 
with  process.  Albrecht  v.  Hittle, 
248  111.  72   (1910). 

59.  In  Rhode  Island,  when  a  de- 
fendant is  a  non-resident  or  is 
without  the  state,  service  of  the 
subpoena  may  be  made  on  him  per- 
sonally by  any  disinterested  per- 
son who  shall  make  affidavit  of  the 
same.     Gen.  Laws,  Sec.  16. 


334 


EQUITY  PRACTICE 


certificate  of  the  clerk  of  a  court  of  record  in  tlie  same 
county  that  such  officer  is  qualified  to  serve  process. 

Where  service  is  to  be  made  by  publication  ^*^  a  copy 
of  the  order  is  usually  required  to  be  published  three 


60.  The  rules  stated  in  the  text 
are  intended  merely  as  a  summary 
of  the  methods  of  service  by  pub- 
lication and  as  all  the  statutes  dif- 
fer somewhat  in  their  wording  they 
should  be  separately  consulted. 

Alabama.  Code,  Sees.  3,104, 
3,105,  3,106;  Eule  22. 

Delaware.  Code  1852,  as  amend- 
ed 1893,  Chap.  95,  Sec.  5;  Eule  13. 

Florida.  Chap.  5,393,  Acts  of 
1905,  Sec.  1,  as  amended  by  Chap. 
6,227,  Sec.  1,  Laws  of  1911;  G.  S., 
Sec.  1,866,  as  amended  by  Acts  of 
1913. 

IlUnois.  J.  &  A.,  H  7,856;  Kurd's 
Stat.,  Chap.  100,  Sec.  9;  J.  &  A., 
1[  S92;  Kurd's  Stat.,  Ch.  22,  Sec.  12. 

Maine.     Rule  7.. 

Maryland.  Code,  Art.  16,  Sees. 
J 17,  118,  124  to  126,  as  amended. 

Massachusetts.     Rule  5. 

Michigan.  Kow.  Ann.  St.  (2d 
ed.),  §12,005;  C.  L.,  Title  4,  Part 
3,  Sees.  80  to  84. 

Mississippi.  Code,  Chap.  115, 
Sees.  3,920  to  3,922. 

New  Hampshire.     Rule  35. 

New  Jersey.     Rules  54  to  57. 

Pennsylvania.  Act  of  April  6, 
1859;  Smith  v.  Carter,  219  Pa.  315, 
68   Atl.   736   (1908). 

Tennessee.  Code  of  1896,  Sees. 
6,164  to  6,169. 

Vermont.  P.  S.,  Sees.  1,245, 
1,246,  as  amended  by  Acts  of  1908 
and   1910. 

Virginia.     Code,  Sec.  3,230. 

West  Virginia.     Code,  See.  4747. 

Service  by  publication  in  cases 
where  personal  service  cannot  be 
had  is  entirely  statutory  and  being 


in  derogation  of  the  common  law 
the  statutes  must  be  strictly  con- 
strued and  literally  observed. 
Sayre  v.  Elyton  Land  Co.,  73  Ala. 
85  (1882);  Granger  v.  Judge  Super. 
Ct.,  44  Mich.  384  (1880);  Foster  v. 
Simmons,  40  Miss.  585  (1866); 
Cohen  v.  Portland  Lodge,  152  Fed. 
357,  81  C.  C.  A.  483,  affirming  144 
Fed.  266   (1907). 

Pennsylvania  Act  of  April  6, 
1859,  applies  only  to  cases  where 
the  subject-matter  is  within  the 
county  where  the  suit  is  brought 
or  where  the  court  has  acquired 
jurisdiction  by  service  on  a  prin- 
cipal defendant.  Eby's  App.,  70 
Pa.  311   (1872). 

Service  on  a  defendant  who  is  a 
disinterested  or  passive  party  will 
not  authorize  service  on  the  active 
defendant  out  of  the  jurisdiction. 
Coleman's  App.,  75  Pa.  441  (1874). 

Under  the  La^s  of  New  Jersey, 
1902,  p.  514,  Sees.  12  and  13,  and 
Rule  58  of  the  chancery  court,  the 
notice  to  the  non-resident  defend- 
ant must  apprise  such  defendant 
that  he  is  sued  and  what  the  na- 
ture of  the  suit  is  and  must  make 
a  disclosure  of  the  res  towards 
which  the  suit  is  directed.  Am- 
paro  Mining  Co.  v.  Fidelity  Trust 
Co.,  74  N.  J.  Eq.  197   (1908). 

Where  service  of  process  is  by 
publication,  the  record  must  show 
affirmatively  the  publication  for 
the  requisite  time,  otherwise  the 
court  has  no  jurisdiction.  G.  T.  & 
S.  D.  Co.  V.  Buddington,  27  Fla. 
215   (1891). 

Where   a  husband   and   wife   are 


VENUE,  FILING  AND  SERVICE  335 

times  in  successive  weeks  following  tlie  date  of  tlie  order, 
the  last  date  of  publication  to  be  at  least  the  jjrescribed 
length  of  time  required  for  the  notice  prior  to  the  return 
day!  Proof  of  service  by  publication  is  usually  made  by 
affidavit. 

It  must  not  be  supposed,  however,  that  service  of  such 
order  of  notice  on  defendant  is  in  itself  sufficient  to  give 
the  court  jurisdiction  over  such  defendant  if  he  fails  to 
appear  and  submit  himself  to  the  jurisdiction.  If  he  is 
the  sole  defendant  and  fails  to  appear,  the  suit  cannot  go 
on.  If  he  is  simply  one  of  several  defendants  the  suit  can 
proceed  without  him  if  his  interest  is  separable  from  those 
of  the  others,  so  that  the  decree  will  not  bind  him,  but 
only  those  before  the  court.  The  notice  is  simply  to 
enable  him  to  appear  if  he  so  desires.  It  cannot  drag  him 
within  the  limits  of  the  state  or  subject  him  to  the  juris- 
diction of  the  court  against  his  will,^^ 

§  170.  Special  service  by  order  of  court — (1)  Service 
on  resident  defendants  by  special  order  of  court  on  bill. 
It  is  sometimes  provided  that  the  court  may  by  special 
order  make  bills  returnable  at  other  times  than  the 
regular  return  days,  and  also  may  authorize  special  modes 
of  service  even  on  resident  defendants.*'-  The  bill  is  first 
filed  with  the  clerk  in  the  regular  way,  as  this  is  the 
beginning  of  the  suit  in  equity  when  brought  by  bill 

made  defendants  and  he  only  is  61.  See  Chapter  III,  "Persons, 
served  with  process  of  subpoena.  Territory  and  Amount,"  ante,  pp. 
the  wife  being  out  of  the  state,  an  48  et  seq.,  and  Chapter  IV,  "Par- 
order  of  publication  shall  be  taken  ties,"  ante,  p.  75. 
against  her  unless  an  appearance  62.  Del.,  Rules  9  and  10;  Me., 
be  entered  for  her.  New  Jersey  E.  S.,  Chap.  79,  Sec.  12;  R.  I.,  Gen. 
Rule  55.  Laws,   Ch.   240,  Sec.   3. 

No  other  than  the  party  sought  Service  on  solicitors  of  defend- 
to  be  served  by  publication  can  ob-  ant  is  not  a  substitute  for  actual 
ject  to  the  insufficiency  of  such  service  on  the  parties  in  the  ab- 
service.  Hinton  v.  Knott,  134  111.  sence  of  an  order  of  court.  I'acific 
App.  295  (1907).  And  such  objec-  R.  v.  Missouri  Pacific  R.  Co.,  3  Fed. 
tion  comes  too  late  when  made  on  772  (1880). 
appeal.    Ibid. 


336  EQUITY  PRACTICE 

alone,  and  then  the  plaintiff  should  prepare  such  an  order 
as  he  desires  and  present  it  to  the  court  for  signature,  and 
then  file  it  with  the  clerk  to  be  annexed  to  the  original 
bill ;  or  such  order  may  be  annexed  to  the  bill  in  the  begin- 
ning and  the  court's  signature  obtained  after  filing;  or  the 
matter  may  be  brought  to  the  attention  of  the  court  orally 
and  the  oi'der  endorsed  by  him  on  the  bill  itself.  In  such 
cases  the  mode  of  service  is  in  the  discretion  of  the  court ; 
but  the  order  usually  directs  that  the  bill  be  served  by  an 
officer  duly  qualified  to  serve  process  in  the  county  where 
the  defendant  resides,  by  giving  the  latter  in  hand  an 
attested  copy  of  the  bill  and  the  order  of  court  thereon. 
The  court  may  in  its  discretion  shorten  the  length  of 
notice  required  by  the  order,  to  less  than  the  regular 
time  required  in  ordinary  ser\'ice  if  the  circumstances 
demand  it ;  but  is  loth  to  do  so  without  very  strong  reason. 
It  should  not  be  applied  for  where  the  defendant  is  out 
of  the  state,  since  the  order  of  notice  in  such  case  is 
specially  provided  for  by  statute  or  rule,  and  is  returnable 
only  within  the  periods  therein  prescribed. 

§  171.  — (2)  Service  on  non-resident  defendants  by  spe- 
cial order  of  notice  by  court  on  bill  requiring'  either  (a) 
personal  service  or  (b)  service  by  publication.  In  addi- 
tion to  the  method  of  service  on  non-residents  by  order  of 
notice  issuing  out  of  clerk's  office  as  a  matter  of  course 
under  the  provisions  of  statutes  or  rules  of  court,  pro- 
vision is  also  made  by  statutes  and  rules  of  court  in  some 
states  ^^  for  service  of  process  on  non-residents  by  special 
order  of  court,  either  requiring  personal  service  or  ser^^- 
ice  by  publication.     The  methods  of  service  usually  fol- 

63,  Delaware.     Code  of  1852,  as  Maryland.      Code,    Art.    16,   Sec. 

amended    1893,    Chap.    95,    See.    5;  H"- 

xj  J     23  Michigan.      How.    Ann.    St.    (2d 

ed.),  §§12,005  et  seq. ;  C.  L..  Title 

Florida.     Acts     of     1905,     Chap.  ^^  p^^^  3,  Sees.  81  and  84. 

5,393,  See.  1,  as  amended  by  Laws  -^^^  Hampshire.     Rule  35. 

of  1911,  Chap.  6,227,  Sec.  1;  G.  S.,  Pennsylvania.     Act    of   April   6, 

Sec.  1,866.  1859. 


VENUE,  FILING  AND  SERVICE  337 

lowed  in  such  cases  are  as  set  forth  above  ^^*  when 
made  under  orders  issuing  as  of  course,  except  that  the 
court  when  making  a  special  order  is  usually  allowed 
to  vary  the  method  or  the  length  of  notice  required,  in 
its  discretion. 

§  172.  — (3)  Service  on  non-residents  by  special  order 
of  court  on  bill  inserted  in  writ  of  attachment  as  in  action 
at  law.  Wherever  a  bill  is  inserted  in  a  writ  and  prop- 
erty attached,  and  the  defendant  is  out  of  the  state,  the 
statutes  concerning  service  of  writs  at  law  on  non-resi- 
dents are  followed  in  practice.^^ 

The  form  of  special  order  employed  in  the  case  of  writs 
generally  differs  greatly  from  the  special  order  above 
described  on  a  regular  bill.  In  the  first  place  the  matter 
may  be  brought  to  the  court  before  entrj^,  since  suit  is 
begun  when  the  writ  is  made  with  intention  of  service. 
Secondly,  it  can  be  employed  only  when  property  is 
attached  and  the  defendant  is  a  non-resident.  Thirdly, 
it  can  only  be  made  returnable  at  a  regular  term  of  court. 
The  method  of  giving  notice  is  left  to  the  discretion  of 
the  court,  and  is  usually  by  a  copy  of  the  bill  and  writ  and 
the  order  of  court  thereon,  given  in  hand  to  the  defendant 
by  a  duly  qualified  officer  in  the  place  where  the  defend- 
ant resides,  whose  authority  is  proved  by  the  certificate 
of  a  clerk  of  courts  in  the  usual  way, — or  notice  may  be 
given  by  publication. 

It  is  to  be  noted  here,  however,  as  in  the  case  of  order 
of  notice  to  defendants  out  of  the  state,  that  unless  the 
defendant  appears,  the  notice  itself  will  not  subject  his 
person  to  the  jurisdiction.  But  in  this  special  order  of 
notice  when  property  is  attached  on  a  writ,  such  notice 
to  a  defendant  out  of  the  state  does  give  jurisdiction  in 
rem  over  his  property  thus  attached.^-^ 

63a.  See  Sec.  169,  ante,  p.  332.  65.  Du  Piiy  v.  Standard  Mineral 

64.  See  Me.,  E.  S.,  Chap.  83,  Sec.       Co.,  88  Me.  202   (1895)- 

21;  Mass.,  E.  L.,  Chap.  170,  Sec.  6, 

and  following. 

Wliitehouse  E.  P.  Vol.  I — 22 


338 


EQUITY  PRACTICE 


§  173.  Substituted  service.  Where  a  non-resident 
brings  a  suit  at  law  by  liis  attorney,  service  of  process  in 
equity  upon  sucli  attorney  in  tlie  suit  at  law  is  sufficient 
substituted  service  to  give  the  court  jurisdiction  to  enjoin 
the  suit  at  law.  This  may  be  done  either  on  a  regular 
bill  '^^  or  a  bill  inserted  in  a  writ.^'^  But  such  service  on  a 
regular  bill  alone  is  held  insufficient  to  give  jurisdiction 
for  any  other  purpose  except  that  of  enjoining  the  suit 
at  law.®^ 

It  would  seem  that  it  might  be  otherwise  where  the  bill 
was  inserted  in  a  writ,  since  it  is  the  practice  to  serve  such 
writs  as  other  writs  of  attachment  are  served,  and  in 
some  jurisdictions  by  statute  the  writ  may  be  served  on  a 
defendant  who  is  a  non-resident  by  leaving  a  summons  or 
copy   (as  the  case  may  be)   with  his  tenant,  agent  or 


66.  Chalmer  v.  Hack,  19  Me.  124 
(1841);  Shainwald  v.  Davids,  69 
Fed.  701   (1895). 

A  non-resident  cannot  be  brought 
within  the  jurisdiction  of  the  court 
by  service  upon  a  resident  attor- 
ney at  law  merely  employed 
to  represent  the  defendant  in  an- 
other suit.  Shainwald  v.  Davids, 
69  ^Fed.  701   (1895). 

Service  on  a  person  who  had 
acted  as  attorney  at  law  of  non- 
resident defendant  as  to  a  portion 
of  the  property  which  was  the  sub- 
ject matter  of  the  suit,  and  who 
was  in  possession  of  it  with  power 
to  dispose  of  it,  was  not  sufficient 
service  to  bind  defendant.  Blake 
V.  Baker,  1  R.  I.  285  (1850). 

It  has  been  said  that  the  Fed- 
eral courts  recognize  two  excep- 
tions to  the  rule  that  service  of 
a  subpoena  to  answer  a  cross  bill 
cannot  be  made  upon  the  solici- 
tor of  the  plaintiff  in  the  original 
bill, — one,  in  case  of  injunctions  to 
stay   proceedings   at   law,   and    the 


other  in  cross  suits  in  equity  where 
the  plaintiff  at  law  in  the  first  and 
the  plaintiff  in  equity  in  the  second 
case  reside  beyond  the  jurisdiction 
of  the  court.  Lowenstein  v.  Glide- 
well,  Fed.  Cas.  No.  8,575  (1878). 
Where  a  bill  is  brought  to  en- 
join a  judgment  and  other  parties 
are  made  by  the  bill  and  different 
interests  involved,  the  bill  is  to 
them  an  original  suit,  and  the  juris- 
diction of  the  court  must  depend 
upon  their  ability  to  be  sued  by 
the  plaintiff  as  in  other  cases. 
Dunn  v.  Clarke,  8  Pet.  (U.  S.)  1, 
8  L.  ed.  845    (1835). 

67.  Marco  v.  Low,  55  Me.  ."iSl 
(1867). 

In  general  chancery  practice  this 
is  done  by  special  order  of  court 
on  motion  supported  by  affidavit 
as  to  the  facts.  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  p.  447;  Stevens  v.  Cini, 
4   Ves.    358. 

68.  Chalmers  v.  Hack,  19  Me. 
124    (1841). 


VENUE,  FILING  AND  SERVICE 


339 


attorney  in  the  state,  the  required  time  before  the  sitting 
of  the  court.'^'''  But  such  service  could  not  properly  give 
jurisdiction  over  the  person  of  the  defendant  unless  he 
appeared.  It  should  have  the  force  only  of  an  order  of 
notice  served  on  defendant  out  of  the  state,  which  if  there 
be  property  attached  gives  the  court  jurisdiction  over  the 
property^"  The  agent  or  attorney  in  such  case  should, 
it  would  seem,  be  a  general  and  continuing  agent  or 
attorney,  and  not  one  for  some  special  and  temporary 
service.^  ^ 

§  174.  Acknowledgment  of  service.  Ser\^ice  of  process 
may  be  acknowledged  by  the  defendant  or  his  attorney 
of  record,  or  a  specially  authorized  agent."^ 

The  acknowledgment  must  be  in  writing,  generally  on 
the  process  itself,  and  it  will  not  be  sufficient  unless  veii- 
fied  by  proof  of  the  signature  of  the  party  or  agent  mak- 
ing the  same.'^^ 


69.  Me.,  R.  S.,  Chap.  83,  See.  21; 
Mass.,  E.  L.,  1902,  Chap.  167,  Sec. 
31. 

Since  the  latter  half  of  the  sec- 
tion of  the  Maine  statutes,  above 
quoted,  providing  for  order  of  no- 
tice when  there  is  no  agent  or  at- 
torney and  property  is  attached,  is 
applied  to  bills  inserted  in  a  writ 
there  would  seem  no  valid  reason 
for  refusing  to  apply  the  first  half 
also,  providing  for  service  upon 
tenant,  agent  or  attorney. 

70.  The  Maine  statute  authoriz- 
ing service  upon  a  non-resident  de- 
fendant by  service  on  his  tenant, 
agent,  or  attorney,  does  not  au- 
thorize such  service  unless  prop- 
erty is  attached.  Martin  v.  Bry- 
ant, 108  Me.  253    (1911). 

71.  As  to  just  what  is  meant  by 
"tenant"  in  these  statutes  is  riot 
clear.  It  could  hardly  have  been 
intended  to  mean  that  service  on 
any    irresponsible    occupant    of    a 


tenement  house  owned  by  defend- 
ant in  the  state  would  be  good 
service  on  the  latter. 

72.  Alabama.  Tuskaloosa  Wharf 
Co.  V.  Tuskaloosa,  38  Ala.  514 
(1863). 

Illinois.  Banks  v.  Banks,  31  111. 
364  (1863). 

Massachusetts.  Richardson  v. 
Smith,  11  Allen  (Mass.)  134 
(1865). 

Michigan.  Jones  v.  Merrill,  113 
Mich.  433   (1897). 

Mississippi.  Harvie  v.  Bostic,  1 
How.  (Miss.)  106  (1884). 

New  Jersey.  Beebe  v.  George  H. 
Beebe,  64  N.  J.  L.  497   (1900). 

Rhode  Island.  Hawkins  v.  Boy- 
den,  25  R.  I.  181   (1903). 

Virginia.  Phinney  v.  Clark,  86 
Va.  354  (1889). 

West  Virginia.  Marling  v.  Ro- 
brecht,  13  W.  Va.  440  (1878). 

73.  O'Neal  v.  Garrett,  3  Ala.  276 
(1842);   Mayor  v.  Bull,  26  111.  348 


340 


EQUITY  PRACTICE 


Such  an  acknowledgment  when  properly  made  and 
proved  will  have  the  same  legal  effect  as  a  service  and 
return  by  the  officer  whether  made  within  the  jurisdic- 
tion,"* or  in  another  state.'^ 

§  175.  Defects  of  service  cured.  It  is  sometimes  pro- 
vided by  statute  that  when  the  jDroperty  of  a  defendant 
is  attached  on  a  writ  and  no  service  is  made  on  him  before 
entry,  or  if  service  in  any  case  is  defective  for  any  cause, 
without  fault  of  the  plaintiff  or  his  attorney,  the  court 
may  order  a  new  service,  which,  when  made,  is  as  effec- 
tual as  if  proper  service  had  been  made  in  the  first 
instance.^® 


(1861);  Harvie  v.  Bostie,  1  How. 
(Miss.)    106    (1834). 

In  New  Jersey,  by  statute,  writ- 
ten acknowledgment  of  service  of 
subpoena  may  be  made  by  defend- 
ant or  his  solicitor,  his  signature 
being  verified  by  affidavit.  Comp. 
St.,  "Chancery,"  Sec.   6. 

In  Eowan  v.  Wallace,  3  Port. 
(Ala.)  171  (1838)  the  return  of  a 
sheriff,  by  endorsing  on  the  process 
that  service  was  acknowledged  by 
defendant,  was  held  sufficient. 
Contra,  Mayor  v.  Bull,  26  111.  348 
(1861). 

74.  Tuskaloosa  Wharf  Co.  v. 
Tuskaloosa,  38  Ala.  514  (1863); 
Banks  v.  Banks,  31  HI.  164  (1863); 
Hawkins  v.  Boyden,  25  E.  I.  181 
(1903);  Marling  v.  Eobrecht,  13 
W.  Va.  440    (1878). 

Where  an  agreement  to  acknowl- 
edge service  is  made  twenty  days 
before  return  day,  it  is  immaterial 


that  the  actual  signing  of  such  ac- 
knowledgment does  not  take  place 
until  later.  Hawkins  v.  Boyden, 
supra. 

75.  Eichardson  v.  Smith,  11 
Allen  (Mass.)  134  (1865);  Jones  v. 
Merrill,  113  Mich.  433  (1897). 

In  Ehode  Island,  service  on  a 
defendant  who  resides  or  is  with- 
out the  state  may  be  made  by  the 
admission  of  such  service  by  the 
defendant  on  the  back  of  the  sub- 
poena and  by  his  acknowledgment 
thereof  before  some  officer  author- 
ized to  administer  oaths.  Gen. 
Laws,  Ch.  289,  Sec.  16. 

In  Virginia,  an  acknowledgment 
by  a  non-resident  of  legal  service 
within  the  District  of  Columbia 
was  treated  as  equivalent  to  an 
order  of  publication  duly  posted 
and  published.  Smith  v.  Chilton, 
77  Va.  535  (1883). 

76.  Me.,  E.  S.,  Chap.  83,  Sec.  23. 


CHAPTER  VIII 


APPEARANCE 


§  176.  Regular  or  gratis.  The  appearance  of  the 
defendant  in  a  suit  may  be  either  regular,  in  response  to 
the  order  of  court  contained  in  the  subpoena,  or  it  may 
be  gratis,^  that  is,  before  subpoena  has  been  served  upon 
him.  Thus  a  defendant  upon  being  arrested  on  the  chan- 
cery writ  of  ne  exeat  to  prevent  his  going  out  of  the  state, 
may  immediately  enter  his  appearance  and  demand  a 
copy  of  the  bill  without  waiting  for  the  service  of  a  sub- 
poena.2  A  party  who  is  named  as  a  defendant  in  the  bill 
may  also  appear  gratis  at  the  hearing  and  consent  to  be 
bound  by  the  decree.^  A  defendant  does  not  lose  his 
right  to  costs  by  appearing  gratis^ 

1.  Ealston   v.    Chapin,   49   Mich.      pearance,  so  as  to  conclude  the  de- 


274  (1882);  Jones  v.  Fulghum,  3 
Tenn.  Ch.  193  (1876) ;  Dan.  Ch.  Pr. 
(6th  Am.  ed.),  p.  539,  citing  Fell 
V.  Christ's  College,  2  Bro.  C.  C. 
279;  Hume  v.  Babington,  1  Hog.  8. 
In  the  earlier  chancery  practice 
regular  appearance  in  response  to 
the  subpoena  was  known  as  volun- 
tary appearance,  and  there  was 
also  a  compulsory  appearance  en- 
forced either  by  the  plaintiff's  en- 
tering of  appearance  for  defendant, 
or  by  the  defendants  being  brought 
in  on  capias,  since  formerly  a  for- 
mal entry  of  appearance  either  vol- 
untary or  compulsory  was  always 
required  before  any  decree  would 
be  rendered;  but  such  formal  entry 
is  now  generally  dispensed  with, 
the  legal  service  upon  a  defendant 
being  held  sufficient  to  answer  all 
the  requirements  of  an  actual  ap- 


fendant  by  the  subsequent  proceed- 
ings. A  trace  of  the  old  practice 
is  to  be  found  in  the  Delaware 
statutory  provision  (E.  C,  Ch.  95, 
Sec.  6)  that  if  a  defendant  brought 
into  court  by  process  will  not  enter 
his  own  appearance  or  appoint  a 
solicitor  to  enter  it,  the  court  may 
appoint  a  solicitor  to  enter  appear- 
ance for  him,  and  the  cause  is  to 
proceed  as  if  the  defendant  had 
himself  appeared. 

2.  Lumber  Co.  v.  Bissell,  9  Paige 
(N.  Y.)  225  (1841). 

3.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
539,  citing  Capel  v.  Butler,  2  S.  & 
S.  457,  462;  Sapte  v.  Ward,  1  Coll. 
24.  So  in  general  of  parties  not 
served  or  irregularly  served.  See 
notes  22  and  23,  post,  pp.  349,  350, 

4.  Bowhee  v.  Grills,  1  Dick.  38. 
A  gratis  appearance  may  be  made 


341 


342 


EQUITY  PRACTICE 


§  177.  Regular  appearance — When  made.  The  rules 
or  statutes  of  the  various  jurisdictions  contain  provisions 
in  regard  to  the  time  when  a  defendant  shall  appear.*^ 


for  the  purpose  of  saving  costs. 
Flagg  V.  Walker,  109  111.  404 
(1884). 

5.  Alabama.  Defendant  is  to  ap- 
pear and  plead  within  thirty  days 
after  service.  Code,  Sec.  3,007. 
"There  is  no  formal  appearance 
day  provided  in  Alabama  chancery 
procedure,  so  unless  the  defendant 
is  present  in  open  court  by  himself 
or  his  solicitor  at  the  hearing  he 
cannot  make  an  appearance  with- 
out filing  some  pleading."  Sims' 
Alabama  Chancery  Practice,  Sec. 
312. 

Delaware.  Appearance  to  be  en- 
tered within  three  days  after  re- 
turn day  of  process,  otherwise 
attachment  to  issue  and  court  may 
appoint  a  solicitor  to  enter  appear- 
ance for  the  defendant.  Eq.  Rule 
14.  Appearance  day  to  be  the  rule 
day  at  which  the  subpoena  is  re- 
turnable provided  process  served 
twenty  days  prior  thereto;  other- 
wise to  be  the  first  Monday  of  the 
next  month  after  the  return  rule 
day.     Laws  Del.,  Vol.  17,  Ch.  215. 

Florida,  Appearance  at  rule  day 
to  which  process  is  returnable,  if 
service  has  been  made  at  least  ten 
days  berfore  that  rule  day,  other- 
wise at  the  next  rule  day.  Eq. 
Eules  15,  16. 

Illinois.  Pleadings  in  defence 
to  be  filed  at  rule  day  to  which 
process  is  returnable,  if  service  has 
been  made  at  least  ten  days  before 
that  day,  otherwise  at  the  first  day 
of  the  next  term  of  court.  J.  &  A., 
1111888,  889,  891;  Kurd's  Stat.,  Ch. 
22,  Sees.  8,  9,  11. 

Maine.      Appearance  within  three 


days  after  return  day  of  any  proc- 
ess returnable  to  a  regular  term, 
otherwise  on  the  return  day  of  the 
process.     R.  S.,  Ch.  79,  Sec.  16. 

Maryland.  Appearance  within 
fifteen  days  after  return  of  process 
served.  Code,  Art.  16,  Sec.  139: 
Eq.  Rule  11. 

Massachusetts.  Appearance  on 
return  day  when  personal  service 
or  personal  notice  has  been  had, 
otherwise  on  return  day  of  order 
of  notice.     Eq.  Rule  8. 

Michigan.  Appearance  within 
fifteen  days  after  service  of  sub- 
poena.    Eq.  Rule  5. 

Mississippi.  Plea,  answer  or  de- 
murrer to  be  filed  on  or  before  first 
day  of  the  term  if  process  is  re- 
turnable to  a  regular  term,  other- 
wise at  monthly  rule  day  next  suc- 
ceeding that  to  which  the  process 
is  returnable.     Code,  Sec.  600. 

New  Hampshire.  Appearance  at 
the  return  term.     Eq.  Rule  92. 

New  Jersey.  Plea,  demurrer  or 
answer  to  be  filed  within  twenty 
days  from  return  day  of  subpoena 
unless  extension  granted.  Comp. 
St.,  "Chancery,"  Sec.  20  (as 
amended,  1913). 

Pennsylvania.  Appearance  with 
in  fifteen  days  after  service.  Eq. 
Rule  4. 

Rhode  Island.  Appearance  on 
or  before  ten  days  after  return  day 
or  subpoena,  although  for  cause 
shown  appearance  at  a  later  time 
may  be  allowed.  G.  L.,  Ch.  289, 
Sec.  5. 

Tennessee.  Appearance  within 
first  three  days  of  return  term  if 
service  five   days  before  the  term, 


APPEARANCE 


343 


§  178.  — How  made.  The  chancery  rules  of  some  of  the 
states  provide  expressly  in  what  way  an  appearance 
shall  be  entered.^  The  practice  generally  is  for  the 
defendant  or  his  attorney,  as  the  case  may  be,  to  enter 
his  name  on  the  docket  in  his  own  handwriting,  or  else 


otherwise  on  first  day  of  the  next 
term.    Code,  Sees.  6,160,  6,161. 

Vermont.  Appearance  on  first 
day  of  next  term  at  least  twelve 
days  after  service.     Eq.  Eule  9. 

Virginia.  Appearance  at  return 
rule  day  of  process,  or  (when  re- 
turnable to  a  term)  at  first  rule 
day  after  it  is  returned.  Code, 
Sees.  3,240,  3,284. 

West  Virginia.  (Same  as  Vir- 
ginia.)    Code,  Sec.  4798. 

United  States.  Defendant  to 
file  his  pleadings  within  twenty 
days  after  service  of  process  upon 
him.     Eq.  Eule  12. 

It  will  be  noticed  from  the  above 
summary  that  in  several  jurisdic- 
tions there  are  no  provisions  for 
appearance  as  distinguished  from 
the  filing  of  a  pleading  in  defence; 
viz.,  in  Alabama,  Illinois,  Missis- 
sippi, New  Jersey,  and  the  Fed- 
eral  courts. 

6.  Florida.  Appearance  to  be 
made  personally  or  by  solicitor  and 
entered  on  the  docket  by  the  clerk. 
Eq.  Eule   16. 

Maine.  Appearance  entered  on 
the  docket  by  party  or  counsel  or 
filed  with  the  clerk,     Eq.  Eule  8. 

Maryland.  Clerk  to  note  appear- 
ance and  time  of  appearance  on 
margin,  and  if  appearance  is  by 
solicitor  and  there  is  more  than 
one  defendant,  the  clerk  is  to  note 
for  which  defendants  appearance 
is  entered.     Eq.  Rule  11. 

Michigan.  Notice  of  appearance 
having  been  entered  at  clerk's  of- 
fice, it  is  to  be  served  on  the  plain- 


tiff's counsel,  and  this  entitles  the 
defendant  or  his  counsel  to  notice 
of  all  further  proceedings,  whether 
or  not  answer  is  filed.     Eq.  Eule  5. 

Pennsylvania.  Prothonotary  to 
indorse  appearance,  or  written  ap- 
pearance to  be  filed.     Eq.  Eule  13. 

In  several  of  the  jurisdictions, 
however,  the  only  method  of  en- 
tering an  appearance  is  by  filing 
a  pleading  in  defence.  See  foot- 
note 5,  a7ite. 

The  promise  to  enter  a  general 
appearance  followed  by  a  failure 
to  do  so  is  not  equivalent  to  the 
entry  of  an  appearance.  Soles  v. 
Sheppard,  96  III.   131    (1880). 

A  mere  inquiry  whether  a  con- 
tinuance can  be  taken  is  not  an  ap- 
pearance. Fulton  V.  Eamsey,  67 
W.  Va.  321  .(1910). 

Acknowledgment  of  service  is 
not  a  general  appearance  unless  the 
court  is  given  the  authority  to 
enter  the  appearance.  Keeler  v. 
Keeler,  24  Wis.  526   (1869). 

An  endorsement  by  an  attorney 
"enter  my  appearance"  is  suifi- 
cient  to  justify  a  pro  covfesso,  al- 
though the  defendant  was  not 
served,  and  the  clerk  omitted  to 
enter  the  appearance  formally  on 
the  docket.  Harrison  v.  Morton, 
87  Md.  671   (1899). 

It  seems  that  the  plaintiff's 
counsel  may  be  authorized  by  the 
defendant  to  enter  his  appearance. 
Snell  V.  Stanley,  63  111.  391  (1872). 
Contra,  Ball  v.  Poor,  81  Ky.  26 
(1883). 


344  EQUITY  PRACTICE 

to  file  with  the  clerk  a  written  request,  signed  by  the 
defendant  or  his  attorney,  giving  the  title  of  the  cause, 
and  asking  the  clerk  to  enter  his  appearance.  It  is  not 
good  practice  for  the  clerk  to  enter  an  appearance  on  an 
oral  request  unless  an  answer  or  some  other  pleading 
equivalent  to  an  answer  is  filed  at  the  same  time.  When 
the  defendant  desires  to  appear  for  himself,  his  name 
should  be  entered  with  the  words  ^'pro  se"  thereafter. 
When  appearance  is  by  counsel,  the  latter 's  name  should 
be  entered  in  like  manner  with  the  words  ''for  defend- 
ant" thereafter. 

§  179.  Infants  and  insane  persons.  Infants  and  insane 
persons  may  appear  by  general  guardian  if  there  be  sucli. 
or  a  guardian  ad  litem  may  be  appointed,  the  practice 
varying  in  different  jurisdictions.^  If  a  guardian  ad  litem 
is  appointed,  he  must  appear;  an  appointment  merely 
without  appearance  is  insufficient.^  The  appearance  is 
made  by  the  guardian  himself  entering  his  own  name  on 
the  docket  under  that  of  the  defendant  minor  with  the 
word  ''Guardian"  thereafter,  or  by  the  counsel  retained 
by  the  guardian  for  the  infant  or  insane  person  entering 
or  requesting  the  clerk  in  writing  to  enter  the  counsel's 

7.  See  Chapter  IV,  "Parties,"  key,  1  Swan  (Tenn.)  75  (1851). 
Sec.  48,  ante,  pp.  67  et  seq.,  for  Xor  does  a  stipulation  by  attor- 
summary  of  the  law  in  the  various  neys.  McDurmaid  v.  Eussell,  41 
jurisdictions  as  to  the  persons  en-  111.  489   (1866). 

titled  to  conduct  the  defence  for  But  a  guardian  ad  litem  may  ex- 
defendant  infants,  idiots  and  luna-  pedite  a  revivor  by  waiving  proc- 
tics.  ess,    when   for    the    benefit    of    his 

8.  Chalfant  v.  Monroe,  3  Dana  wards.  Hannum  v.  Wallace,  9 
(Ky.)    35    (1835).  Humph.   (Tenn.)   129   (1848).     And 

An     appearance     of     a     general  the   guardian   or   committee   of   an 

guardian    or    a    guardian    ad    litem  insane  person   may  perhaps   waive 

does  not  effect  a  waiver  of  service  service  of  process.     Yount  v.  Turn- 

of  process  on  an  infant,  as  it  does  paugh,  33  Ind.  46  (1870);  Symmes 

on  a  person  sui  juris.     Dickison  v.  v.  Major,  21  Ind.  444  (1863). 

Dickison,     124     111.     483      (1888);  See  Chapter  VII,  "Venue,  Filing 

Campbell   v.   Campbell,   63  111.   462  and  Service,"  Sees.  165,  166,  ante, 

(1872) ;  Taylor  v.  Walker,  1  Heisk.  pp.  325  et  seq.,  as  to  service  of  proc- 

(Tenn.)  734  (1870);  Frazier  v.  Pan-  ess  on  infant  or  insane  defendants. 


APPEARANCE 


345 


name  with  the  words  * '  solicitor  for  AB,  guardian  of  BC, 
minor"  or  "non  compos"  or  "insane"  or  other  cause 
of  guardianship,  as  the  case  may  be. 

§  180.  Unauthorized  appearance.  A  defendant  who 
has  not  been  served  with  j^rocess  cannot  of  course  be 
bound  by  the  entry  of  an  appearance  for  him  by  anyone 
without  authority.'-^  But  the  entry  of  an  appearance  for 
a  defendant  by  an  attorney  at  law  carries  with  it  a  pre- 
sumption that  such  attorney  has  authority,  and  if  the  con- 
trary is  alleged,  affirmative  proof  must  be  produced  and 
until  it  is,  the  defendant  will  be  treated  as  properly  in 
court.^"     Objections  to  the  authority  of  an  attorney  to 


9.  Illinois.  Anderson  v.  Hawhe, 
115  111.  33    (1885). 

Maine.  McNamara  v.  Carr,  84 
Me.  299   (1892). 

New  Jersey.  Price  v.  Ward,  25 
N.  J.  L.  225   (1855). 

New  York.  Myers  v.  Prefon- 
taine,  40  App.  D.  603   (1899). 

Pennsylvania.  Bryn  Mawr  Nat. 
Bank  v.  James,  152  Pa.  S.  364 
(1893). 

Tennessee.  Greenlaw  v.  Pettit, 
87  Tenn.  467  (1889). 

United  States.  Mills  v.  Scott,  43 
Fed.  452   (C.  C.  1890). 

Having  given  counsel  authority 
to  enter  a  special  appearance,  a 
defendant  will  be  bound  by  the 
entry  of  a  general  appearance. 
Kramer  v.  Gerlach,  28  Misc.  525 
(N.  Y.  1899);  McNeal  v.  Gossard, 
68  Kan.  113   (1903). 

No  appearance  can  be  entered 
for  a  deceased  defendant.  Squibb 
v.  McFarland,  11  Heisk.  (Tenn.) 
563   (1872). 

10.  Illinois.  Farmers',  etc.,  Co. 
v.  Wilcox,  180  111.  246  (1899);  Fer- 
ris V.  Bank,  158  111.  236  (1895). 

Indiana.  Bush  v.  Bush,  46  Ind. 
70   (1874). 


Maine.  Whitney  v.  Brown,  30 
Me.  557   (1849). 

New  Hampshire.  Manchester 
Bank  v.  Fellows,  28  N.  H.  302 
(1854),  semhle. 

New  Jersey.  Insurance  Co.  v. 
Pinney,  43  N.  J.  E.  52,  56  (1887). 

Tennessee.  Greenlaw  v.  Pettit, 
87  Tenn.  467   (1889). 

An  appearance  for  "defend- 
ants ' '  is  presumably  for  those  that 
have  been  served.  Correll  v.  Grei- 
der,  245  111.  378  (1910);  semhle  con- 
tra, Humphrey  v.  Newhall,  48  111. 
116  (1868);  Flake  v.  Carson,  33 
111.  518   (1864). 

In  Martin  v.  Judd,  60  111.  78 
(1871),  the  court  says  that  there 
is  no  presumption  in  favor  of  the 
authority  of  an  attorney  to  ap- 
pear in  vacation  for  the  defendant 
in  a  bill  in   equity. 

A  solicitor's  written  appearance 
on  the  bill  itself  is  sufficient  to 
waive  service  of  process,  because 
of  the  presumption  that  he  was  au- 
thorized to  enter  appearance. 
Jones  V.  Beverley,  45  Ala.  161 
(1871). 


346 


EQUITY  PRACTICE 


appear  should  be  taken  at  the  first  term,  by  motion  in 
writing  supported  by  affidavit.^ ^ 

§  181.  General  appearance.  A  general  appearance  is 
where  the  defendant  appears  without  any  limitation,  for 
the  purpose  of  defence  to  all  matters  involved  in  the  suit. 
It  may  be  said  that  an  appearance  for  any  other  purpose 
than  to  object  to  the  jurisdiction  over  the  joerson  is  a 
general  appearance,^^  and  the  presumption  is  that  an 


11.  Dillon  V.  Rand,  15  Colo.  372 
(1890);  Leslie  v.  Fischer,  62  111. 
118  (1871);  Douglass  v.  Hoffman, 
72  111.  App.  110  (1897);  Kelso  v. 
Steiger,  75  Md.  376  (1892);  Berk- 
ley V.  Newcomb,  24  N.  H.  359 
(1852).  These  were  decisions  at 
law,  but  there  would  seem  to  be 
no  reason  why  they  are  not  equally 
applicable  in  equity  and  the  same 
is  true  of  most  decisions  under  the 
subject  of  appearance. 

12.  Thus  in  particular  an  ap- 
pearance is  general  when  by  plea, 
answer  or  motion  the  question  of 
jurisdiction  of  the  subject-matter 
is  raised,  e.  g.,  that  the  plaintiff's 
bill  has  no  equity. 

Florida.  Dudley  v.  White,  44 
Fla.    264    (1902). 

Illinois.  Nichols  v.  People,  165 
111.  502   (1897). 

Minnesota.  St.  Louis  Car  Co.  v. 
Stillwater,  etc.,  R.  Co.,  53  Minn. 
129    (1893). 

Ohio.  Elliott  V.  Lawhead,  43 
Ohio  St.   171    (1885). 

Virginia.  Norfolk,  etc.,  R.  Co.  v. 
Consolidated,  etc.,  Co.,  Ill  Va.  13 
(1910). 

United  States.  Jones  v.  An- 
drews, 10  Wall.  327,  19  L.  ed.  935 
(1870);  Mahr  v.  Union  Pacific  R. 
Co.,  140  Fed.  921  (C.  C.  1905). 
And  it  makes  no  difference  that 
counsel  entered  appearance  "spe- 
cially" if  it  is  actually  a  general 


appearance  by  the  above  jule. 
Norfolk,  etc.,  R.  Co.  v.  Consolidat- 
ed, etc.,  Co.,  Ill  Va.  13,  ubi  supra; 
Mahr  v.  Union  Pacific  R.  Co.,  140 
Fed.  92L 

So  the  filing  of  an  intervening 
petition  (Bowdoin  College  v.  Mer- 
ritt,  59  Fed.  6  (C.  C.  1893)),  of  an 
appearance  to  a  cross  bill  in  which 
a  person  is  made  a  party  (Wood 
V.  Gumm,  67  111.  App.  518  (1896)), 
of  a  claim  by  a  claimant  (Clark  v. 
Barnard,  108  U.  S. 437,  27  L. ed. 780 
(1883)),  or  of  an  afiidavit  of  preju- 
dice in  order  to  get  a  change  of 
venue  (State  v.  Hilgendorf,  136 
Wis.  21  (1908)),  constitutes  a  gen- 
eral appearance.  So  of  consenting 
to  the  taking  of  depositions  in  a 
cause  on  for  hearing.  Blue  v.  Pol- 
ing, 68  W.  Va.  547  (1911). 

The  mere  physical  appearance  of 
the  defendant  in  court  with  his  at- 
torney does  not  constitute  a  gen- 
eral appearance.  Newlove  v. 
Woodward,  9  Neb.  502   (1880). 

A  voluntary  appearance  in  con- 
tempt proceedings  does  not  amount 
to  a  general  appearance  where  the 
injunction  was  granted  without 
jurisdiction  over  the  defendant 's 
person.  Beck  v.  Vaughan,  134  la. 
331   (1907). 

Taking  an  appeal  from  an  ad- 
verse decision  upon  a  special  ap- 
pearance was  held  to  constitute  a 
general  appearance  for  the  purpose 


APPEARANCE 


347 


appearance  is  general. ^^  Thus  tlie  simple  entry  of  the 
defendant's  name,  or  of  that  of  his  attorney,  as  indicated 
above,  without  qualifying  words,  is  a  general  appearance. 
Procuring  a  continuance  of  a  cause  by  motion  ^*  or 
agreement  ^^  is  a  general  appearance.  So  in  general, 
any  motion  in  the  cause  not  limited  to  the  specific  pur- 
pose of  objecting  to  the  jurisdiction  over  the  person  ^"^ 
will  be  held  to  be  a  general  appearance;  so  with  filing  a 
demurrer,^^  plea  or  answer.^ ^ 


of  subsequent  proceedings,  in 
Standley  v.  Arnow,  13  Fla.  361 
(1870).  But  compare  note  40,  post, 
p.  355. 

13.  Humphrey  v.  Newhall,  48  111. 
116  (1868);  Flint  v.  Comly,  95  Me. 
251  (1909).  Compare  Correll  v. 
Greider,  245  111.  378   (1910). 

14.  Sargent  v.  Flaid,  90  Ind.  501 
(1883);  Stockdale  v.  Buckingham, 
11  la.  45  (1860);  Lane  v.  Leech, 
44  Mich.  163  (1880);  People  v. 
Haughton,  41  Hun  (N.  Y.)  559 
(1886);  Murphy  v.  Herring,  etc., 
Co.,  184  Fed.  495  (C.  C.  1911). 

But  after  a  special  appearance, 
a  mere  motion  for  continuance  does 
not  make  the  appearance  general, 
when  there  is  evidently  no  inten- 
tion of  waiving  the  special  appear- 
ance. Wade  V.  Wade's  Admr.,  81 
Vt.  275  (1908).  Or  a  motion  to 
amend  the  plea  to  the  jurisdiction. 
Pooler  V.  Southwick,  126  111.  App. 
264   (1906). 

In  Lowrie  v.  Castle,  198  Mass. 
82  (1908),  it  was  held  that  where 
the  defendant  through  counsel  ob- 
tained an  extended  time  for  ap- 
pearance, this  did  not  amount  to  a 
general  appearance,  waiving  ob- 
jections in  regard  to  the  service  of 
process. 

15.  Hercules  Iron  Works  v.  El- 
gin   E.    Co.,    141    111.    491    (1892); 


Baisley    v.    Baisley,    113    Mo.    544 
(1892). 

16.  Illinois.  Tagert  v.  Fletcher, 
232  111.  197  (1908);  Abbott  v.  Scra- 
pie, 25  111.  91  (1860). 

Mississippi.  Fisher  v.  Battaile, 
31  Miss.  471   (1856). 

Nebraska.  Eaymond  v.  Strine, 
14   Neb.   236   (1883). 

New  Jersey.  Vandyke  v.  Van- 
dyke, 49  Atl.  1,116  (N.  J.  E.  1901). 

Tennessee.  Straus  v.  Weil,  5 
Cold.   (Tenn.)    120   (1867). 

West  Virginia.  Frank  v.  Zieg- 
ler,  46  W.  Va.  614  (1899). 

United  States.  Edgell  v.  Felder, 
84  Fed.  69,  28  C.  C.  A.  382  (1897). 
But  a  motion  that  the  plaintiff 
give  security  for  costs  is  not  a 
general  appearance.  Peterson  v. 
Morris,  98  Fed.  48  (C.  G.  1899); 
and  unserved  defendants  do  not 
admit  the  jurisdiction  of  the  court 
over  their  persons  by  joining  in  a 
motion  with  served  defendants  to 
set  aside  service.  Beck,  etc.,  Co. 
V.  Wacker,  etc.,  Co.,  76  Fed.  10, 
10  C.  C.  A.  11  (1896).  See  n6te 
28,  2)ost,  p.  352,  in  regard  to  mo- 
tion for  removal  from  State  to 
Federal    court. 

17.  Illinois.  Butman  v.  Butman, 
213  111.   104   (1904). 

Indiana.  Gilbert  v.  Hall,  115 
Ind.  549    (1888). 


348 


EQUITY  PRACTICE 


§  182.  Effect  of  general  appearance.  It  is  a  general 
rule  witliout  exception  tliat  if  the  court  has  jurisdiction 
over  the  subject  matter,  a  general  appearance  gives  juris- 
diction over  the  person,  whether  resident  ^^  or  non-resi- 


New  Hampshire.  Merrill  v. 
Houghton,  51  X.  H.  61   (1871). 

New  Jersey.  Sayre  &  Co.  v. 
Griefen,  72  N.  J.  L.  1   (1905). 

New  York.  Ogdensburg  R.  Co. 
V.  R.  Co.,  63  N.  Y.  176  (1875). 

Pennsylvania.  MacGeorge  v. 
Chemical,  etc.,  Co.,  141  Pa.  575 
(1891). 

West  Virginia.  Totten  v.  Nigh- 
bert,  41  W.  Va.  800  (1896). 

United  States.  New  Jersey  v. 
New  York,  6  Pet.  323,  8  L.  ed.  414 
(1832);  United,  etc.,  Tel.  of  A.  v. 
Bell,  184  Fed.  298,  106  C.  C.  A.  440 
(1911);  Tennis  Bros.  Co.  v.  Wetzel, 
etc.,  R.  Co.,  140  Fed.  193,  145  Fed. 
458,  75  C.  C.  A.  266  (1906);  West- 
inghouse,  etc.,  Co. .v.  Christenson, 
etc.,  Co.,  126  Fed.  764  (C.  C.  1904). 

In  Stephenson  v.  Davis,  56  Me. 
73  (1868),  the  bill  was  dismissed 
on  demurrer  for  want  of  equity 
and  also  for  want  of  jurisdiction 
by  reason  of  non-residence,  non- 
service  within  the  jurisdiction,  and 
failure  to  appear.  The  decision 
would  seem  to  be  erroneous,  since 
the  demurrer  constituted  a  gen- 
eral appearance. 

Even  a  demurrer  solely  for  want 
of  jurisdiction  over  the  person 
amounts  to  a  general  appearance. 
New  Jersey  v.  New  York,  6  Pet. 
(U.  S.)  323,  8  L.  ed.  414  (1832). 

In  Ogdensburg  R.  R.  Co.  v.  R. 
Co.,  63  N.  Y.  176  (1875),  the  court 
said:  "After  the  defendants  (non- 
residents) appeared  and  demurred, 
they  could  not  object  that  they  had 
not  been  served  with  process.  By 
their     demurrer     they     raised     the 


question  that  upon  the  facts  stated 
in  the  complaint  the  court  had  no 
jurisdiction  of  their  persons,  not 
that  they  had  not  been  served  with 
process.  Process  may  have  been 
properly  served,  but  while  it  ap- 
pears in  the  record  that  the  de- 
fendant appeared  and  joined  on 
issue  of  law,  it  is  not  important 
that  it  should  appear  how  it  was 
served  upon  them  or  that  it  was 
served  at  all.  A  defendant  can 
never  appear  and  join  an  issue  of 
law  or  fact  without  waiving  all  ob- 
jections to  the  regularity  or  suffi- 
ciency of  the  service  of  process 
upon  him." 

18.  Fonville  v.  Monroe,  74  111. 
126  (1874),  plea;  Dart  v.  Hercules, 

34  111.  395  (1864),  plea;  Gahm  v, 
Wallace,  206  Mass.  39  (1910),  an- 
swer; Byers  v.  Byers,  208  Pa.  23 
(1904),  plea;  Goodyear  v.  Chaffee, 
3  Blatch.  268  (C.  C.  1855),  answer. 

It  would  seem  that  a  plea  solely 
for  want  of  jurisdiction  over  the 
person,  appearing  by  matters  out- 
side the  record,  constitutes  a  gen- 
eral appearance  on  the  analogy  of 
New  Jersey  v.  New  York,  6  Pet. 
(U.  S.)  323,  8  L.  ed.  414  (1832). 
But  in  Stephenson  v.  Davis,  56  Me. 
73  (1868),  such  a  plea  was  sus- 
tained and  the  bill  dismissed.  And 
see   note   36,  i)ost,  p.   354. 

19.  Seedhouse  v.  Broward,  34 
Fla.  509,  521  (1894);  Buckfield, 
etc.,  R.  Co.  V.  Benson,  43  Me.  374 
(1857) ;  Harrison  v.  Morton,  87  Md. 
671  (1899);  Henderson  v.  Carbon- 
dale  C.  &  Coke  Co.,  140  U.  S.  25, 

35  L.  ed.  332  (1897);  Buerck  v.  Im- 


APPEARANCE 


349 


dent.^"  So  a  person  who  is  not  even  named  in  the  bill  as 
a  party  to  the  suit,  if  he  has  an  interest  in  the  cause,  may 
become  a  party  by  a  general  appearance.^^ 

It  follows  from  the  above,  and  is  equally  well  settled, 
that  a  general  appearance  for  an  adult  defendant, 
whether  by  defendant  pro  se  or  his  attorney,  waives  the 
issuing  and  service  of  process,  and  cures  all  defects  in 
the  process  or  the  service  of  process.^^    A  defective  venue 


haeuser,  8  Fed.  457  (C.  C.  1881). 
And  see  the  cases  under  note  22, 
post. 

20.  Maine.  Flint  v.  Comley,  95 
Me.  251  (1901). 

Maryland.  Fairfax,  etc.,  Co.  v. 
Chambers,  75  Md.  604  (1892), 

Massachusetts.  Pierce  v.  Equita- 
ble, etc.,  Assn.,  145  Mass.  56 
(1887). 

Michigan.  Golden  Star  Lodge  v. 
Watterson,  158  Mich.  696  (1909); 
Dunlap  V.  Byers,  110  Mich.  109 
(1896). 

New  Jersey.  See  v.  Heppenhei- 
mer,  69  N.  J.  E.  36   (1905). 

Pennsylvania.  Byers  v.  Byers, 
208  Pa.  23   (1904). 

Bhode  Island.  Gorman  v.  Still- 
man,  25  R.  I.  55   (1903). 

Virginia.  Grubb  v.  Starkey,  90 
Va.   831    (1894). 

United  States.  Jones  v.  An- 
drews, 10  Wall.  327,  19  L.  ed.  935 
(1870). 

And  see  the  cases  in  note  22, 
post. 

21.  Thompson  v.  Schuyler,  7  111. 
271  (1845);  Hall  v.  Craig,  125  lud. 
523  (1890);  Bradford  v.  Cort,  77 
N.  C.  72  (1877);  Moore  v.  Bruce, 
85  Va.  139  (1888).  But  appearance 
was  held  not  to  make  a  person  a 
party  who  was  not  named,  and 
against  whom  there  was  no  allega- 
tion, in  Frank  v.  Zeigler,  46  W.  Va. 


614  (1899).  It  seems  that  the  other 
parties  must  consent  to  the  appear- 
ance of  a  person  not  named  in  the 
bill.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  540,  citing:  Bozon  v.  Bolland,  1 
R.  &  M.  69;  Atty.  Gen.  v.  Pearson, 
7  Sim.  290;  Dyson  v.  Morris,  1 
Hare  413,  6  Sur.  297. 

A  general  appearance  gives  juris- 
diction over  the  defendant  appear- 
ing, even  though  a  plea  to  the 
jurisdiction  is  sustained  as  to  other 
defendants.  Rosenthal  v.  Rosen- 
that,  151  Mich.  493  (1908). 

If  jurisdiction  by  a  general  ap- 
pearance is  once  acquired  over  a 
defendant,  it  is  not  lost,  as  regards 
any  subsequent  proceedings  in  the 
same  matter,  by  the  removal  of  the 
defendant  to  another  jurisdiction, 
even  though  the  original  attorneys 
now  deny  that  they  have  any  fur- 
ther authority  to  act  for  the  per- 
son. McSherry  v.  McSherry,  113 
Md.  395  (1910). 

22.  Alabama.  Winter  v.  Rose 
32  Ala.  447  (1858);  Byrd  v.  Mc 
Daniel,  26  Ala.  582  (1855);  Harri 
son  V.  Harrison,  20  Ala.  629  (1852) 

Florida.  Seedhouse  v.  Broward 
34  Fla.  509  (1894);  Harrison  v 
Nat.  Bank,  108  111.  App.  493,  aff 
207  HI.  630  (1903-4);  Beal  v.  Har 
rington,  116  111.  113   (1886). 

Maine.  R.  R.  Co.  v.  Benson,  43 
Me.  374  (1857). 


350 


EQUITY  PRACTICE 


as  to  county  in  a  personal,  transitory  suit  will  also  be 
waived  by  a  general  ai^pearance,-^  but  such  is  not  the 

In  Sorg  V.  Crandall,  233  HI.  79 


Maryland.  Harrison  v.  Morton, 
87  Md.  671  (1899);  Dugan  v.  Bal- 
timore, 70  Md.  1  (1888),  insufficient 
service  on  a  municipal  corporation. 

Massachusetts.  Kothschild  v. 
Knight,  176  Mass.  48  (1900),  aff. 
184  U.  S.  334,  46  L.  ed.  573  (1902;; 
Brewer  v.  Sibley,  13  Met.  175 
(1847). 

Michigan.  Tromble  v.  Hoffman, 
130  Mic-h.  676   (1902). 

Mississippi.  Harris  v.  Gwin,  10 
S.  &  M.     Miss.)   563   (1848). 

New  Hampshire.  "White  v.  White, 
60  X.  H.  210    (1880). 

New  Jersey.  Comp.  Stat., 
"Chancery,"  Sec.  3;  Vandyke  v. 
Vandyke,  49  Atl.  1,116.  (X.  -J.  E. 
1901);  Crowell  v.  Botsford,  16  X. 
J.  E.  458  (1863). 

Pennsylvania.  Mac  George  v. 
Chemical,  etc.,  Co.-,  141  Pa.  St.  575 
(1891). 

Vermont.  Bennett  v.  Stiekney, 
17  Vt.  531  (1845 J. 

Virginia.  Atlantic,  etc.,  R.  Co. 
V.  Peake,  S7  Va.   130   (1890). 

West  Virgina.  McDermitt  v. 
Xewman,  64  W.  Va.  195  (1908;,  ir- 
regularity in  retaining  case  on 
docket  without  setting  it  for  hear- 
ing waived  by  general  appearance; 
Frank  v.  Ziegler,  46  W.  Va.  614 
(1899). 

United  States.  Johnson  v.  Wa- 
ters, 111  U.  S.  640  (1883);  Cont., 
etc.,  Co.  V.  Spradlen,  170  Fed.  322, 
95  C.  C.  A.  112  (1909);  Whitecomb 
V.  Hooper,  81  Fed.  946,  27  C.  C.  A. 
19  (1897),  misnomer;  Piatt  v.  Man- 
ning, 34  Fed.  817  (C.  C.  1888), 
service  by  wrong  person;  Buerck 
V.  Imhaeuser,  8  Fed.  457  (C.  C. 
1881),  defendant  not  named  in 
process. 


(1908),  the  appearance  and  answer 
of  the  widow  and  heirs  of  the 
original  plaintiff  to  a  cross  bill 
amended  after  his  death  to  make 
them  parties,  was  held  to  waive 
the   necessity   of  a   formal   review. 

In  Seaton  v.  Chicago  E.  Co.,  55 
Mo.  416  (1874),  it  was  held  that 
an  appearance  and  answer  by  a 
corporation  admitted  its  corporate 
existence;  contra,  Greenwood  v. 
Lake  Shore  E.  Co.,  10  Gray  (Mass.) 
373  (1858);  both  cases  at  law  for 
damages. 

It  seems  that  the  appearance  of 
an  insane  person  admits  or  waives 
nothing.  Lodge  v.  Zuhlke,  129  111. 
298  (1889);  Bradford  v.  Abend,  89 
111.    78    (1878). 

Appearance  waives  any  privilege 
of  the  defendant  not  to  be  served 
with  process  or  summoned  to  ap- 
pear in  court.  Williams  v.  Mc- 
Grade,  13  Minn.  174  (1868),  mili- 
tary officer;  Clark  v.  Barnard,  108 
U.  S.  437,  27  L.  ed.  780  (1883), 
state. 

See  note  28,  post,  p.  352,  in  regard 
to  appearing  to  obtain  removal 
from  State  to  Federal  court. 

Many  of  the  above  decisions  are 
in  cases  at  law,  but  they  seem  to 
be  equally  applicable  in  equity  and 
therefore  to  constitute  good  au- 
thorities for  the  propositions  in  the 
text,  which  have  been  infrequently 
decided   in  equity. 

23.  Florida.  Curtis  v.  Howanl, 
33  Fla.  251  (1894),  semhle. 

Maine.  Webb  v.  Goddard,  46 
Me.   505    (1859). 

Massachusetts.  Brown  v.  Web- 
ber, 6  Cush.  569  (1850). 

North    Carolina.      McPonald    v. 


APPEARANCE 


351 


case  when  the  suit  is  local,-^  It  is  held  that  a  subsequent 
general  appearance  of  defendant  will  validate  the  pre- 
vious service  of  a  writ  of  injunction  made  without  the 
court's  having  obtained  jurisdiction  of  the  defendant.-' 
§  183.  Amendment  and  withdrawal  of  appearance. 
The  court  has  the  power  to  allow  a  general  appearance  to 
be  amended  so  as  to  make  it  special,  where  an  amendment 
of  the  plaintiff's  bill  has  made  such  a  step  necessar^^-" 
and  the  court  may  also  allow  an  appearance  to  be  with- 
drawn.-' 


MacArthur  Bros.  Co.,  154  X.  C. 
122    (1910). 

New  HampsMre.  Bishop  v.  Sil- 
ver Lake,  etc.,  Co.,  62  X.  H.  455 
(1SS3). 

Mississippi.  New  Orleans,  etc., 
R.  Co.  V.  Wallace,  50  Miss.  244 
(1874). 

South  Carolina.  Elms  v.  South- 
ern Power  Co.,  79  So.  C.  502  (1908). 

It  has  been  held  by  a  long  series 
of  decisions  in  the  Federal  courts 
that  appearance  waives  the  objec- 
tion of  defective  venue  as  between 
different  districts  or  circuits.  See, 
e.  g.:  Western,  etc.,  Co.  v.  Butte, 
etc.,  Co.,  210  U.  S.  368,  52  L.  ed. 
1,101  (1908);  Texas,  etc.,  E.  Co.  v. 
Cox,  145  U.  S.  593,  603,  36  L.  ed. 
829  (1891),  receiver;  St.  Louis, 
etc.,  E.  Co.  V.  McBride,  141  U.  S. 
127,  35  L.  ed.  659  (1890);  Howland 
Pulp,  etc.,  Co.  V.  Alfreds,  179  Fed. 
482,  103  C.  C.  A.  62  (1910);  Logan 
&  Bryan  v.  Postal  Tel.  Co.,  157 
Fed.  570   (C.  C.  1908). 

24.  Webb  v.  Goddard,  46  Me.  505 
(1859). 

25.  Dist.  Lodomillo  v.  Dist.  Cass, 
54  Iowa  115   (1880). 

Of  course,  an  appearance  does 
not  waive  defects  in  the  jurisdic- 
tion of  the  court  in  respect  to  sub- 
ject-matter   or    the    right    of    the 


plaintiff  to  sue.  See  chapters  on 
pleas,  demurrers  and  answers  post; 
Gradbury  v.  Waukegan,  etc.,  Co., 
113  111.  App.  600  (1904);  Bank 
V.  Anderson,  6  Wyo.  518  (1897); 
Be  Winn,  213  U.  S.  458,  53  L.  ed. 
873  (1909);  Person  v.  Fidelity, 
etc.,  Co.,  92  Fed.  965,  35  C.  C.  A. 
117,  rev.  84  Fed.  759;  Person  v. 
Standard,  etc.,  Co.,  92  Fed.  1,022, 
35  C.  C.  A.  679   (1897-9). 

26.  Hohorst  v.  Hamburg,  etc., 
Co.,  38  Fed.  273  (C.  C.  1889).  Here 
the  plaintiff  amended  his  bill  so 
that  it  was  no  longer  demurrable 
for  want  of  jurisdiction,  and  the 
defendant  on  motion  was  permitted 
to  amend  his  general  appearance 
so  as  to  make  it  special  for  the 
purpose  of  setting  aside  service  of 
process  and  to  move  to  dismiss  for 
want  of  jurisdiction. 

27.  Douglas  v.  Hoffman,  72  111. 
App.  110  (1897);  McArthur  v.  Lef- 
fler,  110  Ind.  526  (1886);  Symmes 
V.  Major,  21  Ind.  444  (1863);  Sim- 
mons V.  Jacobs,  52  Me.  147  (1862), 
setnble ;  Daley  v.  Iselin,  212  Pa. 
279  (1905),  semhJe;  United  States 
v.  Armejo,  131  V.  S.  Ixxxii,  18  L. 
ed.  247  (1866);  Windsor  v.  Mc- 
Yeagh,  93  U.  S.  274,  23  L.  ed.  158 
(1876).  But  during  the  return 
term,  it  seems  that  an  appearance 


352 


EQUITY  PRACTICE 


§  184.  Special  appearance.  A  special  appearance  is 
an  ajjpearance  for  a  specific  limited  purpose,  and  is  ordi- 
narily made  for  the  sole  purpose  of  objecting  to  tlie  juris- 
diction of  the  court  over  the  defendant's  person.  An 
appearance  in  a  state  court  solely  for  the  purpose  of 
removing  the  case  to  a  Federal  court  is  typically  a  special 
appearance.-^    The  objection  raised  by  the  special  appear- 


may  be  withdrawn  without  leave 
of  court.  United  States  v.  Armejo, 
nbi  supra. 

An  appearance  withdrawn  with- 
out permission  of  the  court  or  of 
the  other  parties  does  not  divest 
the  court  of  jurisdiction  acquired 
by  the  appearance  over  the  person 
of  the  defendant.  Farmers',  etc., 
Co.  V.  Wilcox,  180  111.  246  (1899); 
Dana  v.  Adams,  13  111.  691  (1852); 
White  V.  Ewing,  69  Fed.  451  (C.  C. 
A.  1895).  But  contra  of  an  ap- 
pearance withdrawn  with  the 
court's  permission.  Mc Arthur  v. 
Leffler,    110    Ind.    526    (1886). 

The  withdrawal  of  a  counsel's 
appearance  does  not  necessarily 
withdraw  the  defendant 's  appear- 
ance, especially  where  a  plea  has 
been  filed  and  is  not  withdrawn. 
Mason  v.  Abbott,  83  111.  445  (1876) ; 
Dart  V.  Hercules,  34  111.  395  (1864). 
Contra,  where  the  appearance  is 
withdrawn  with  the  permission  of 
the  court.  McArthur  v.  Leffler,  110 
Ind.  526  (1886).  And  the  with- 
drawal of  a  plea  does  not  with- 
draw an  appearance.  Harrison  v. 
Bank,  108  111.  App.  493,  aff.  207 
111.  630  (1903-4);  Eldred  v.  Bank, 
17  Wall.  (U.  S.)  545,  21  L.  ed.  685 
(1873). 

Before  permitting  an  appearance 
to  be  withdrawn,  the  court  should 
require  notice  to  be  given  the  plain- 
tiff. Daley  v.  Iselin,  212  Pa.  279 
(1905);    Chancery    Eules    of    Cook 


County  (111.),  Superior  and  Circuit 
courts.  The  withdrawal  of  an  ap- 
pearance may  be  waived  by  subse- 
quent acts  of  the  defendant  or  his 
attorney.     Ibid. 

In  Kaymondville  Paper  Co.  v. 
St.  Gabriel  Lumber  Co.,  140  Fed. 
965  (C.  C.  1905),  the  court  refused 
to  allow  a  general  appearance  to 
be  withdrawn  which  had  remained 
on  the  docket  four  years,  during 
which  time  the  defendant  knew 
that  it  had  been  entered  by  coun- 
sel in  excess  of  authority  to  enter 
a  special  appearance. 

It  is  held  in  Jenkins  v.  York 
Cliffs,  etc.,  Co.,  110  Fed.  807  (C.  C. 
1901),  that  while  the  withdrawal 
with  the  court's  permission  of  an 
appearance  entered  through  misap- 
prehension of  his  legal  right  by 
the  defendant  relieves  him  from 
the  waiver  of  fundamental  juris- 
dictional questions  (here  of  venue 
of  the  bill  as  between  different 
districts),  yet  it  does  not  authorize 
the  defendant  to  attack  in  formal 
particulars  the  service  made  on 
him. 

28.  Michigan.  Schwab  v.  Mab- 
ley,  47   Mich.   512    (1882). 

Tennessee.  Bryan  v.  Norfolk, 
etc.,  R.  Co.,  119  Tenn.  319   (1907). 

United  States.  Commercial,  etc., 
Co.  V.  Davis,  213  U.  S.  245  (1910); 
Clark  V.  Wells,  203  U.  S.  164,  51 
L.  ed.  138  (1906),  modifying  136 
Fed.  462;  Flint  v.  Coffin,  176  Fed. 


APPEARANCE  353 

ance,  moreover,  must  be  confined  to  jurisdiction  over 
the  person,  and  must  not  include  jurisdiction  over  the 
subject  matter,  as  that  is  held  to  constitute  a  general 
appearance.^^  So  a  defendant  cannot  come  in  under  a 
special  appearance  for  the  purpose  of  contesting  a  por- 
tion of  the  merits  of  the  plaintiff's  case  without  submit- 
ting himself  to  the  jurisdiction  of  the  court  as  to  any 
other  matter.^*^ 

The  chief  jurisdictional  defects  which  may  be  taken 
advantage  of  by  special  appearance  are  total  want  of 
process,^  ^  defects  in  process  or  service,-^-  non-resi- 
dence,^^ and  improper  venue.^^ 

§  185.  — How  made.  A  party  must  manifest  his  inten- 
tion to  appear  specially,  or  he  will  be  rigidly  held  to 
appear  generally;  and  it  is  therefore  imj^ortant  to  know 
how  this  intention  is  to  be  properly  evidenced,  or  in 
other  words,  how  a  special  appearance  may  be  indicated. 
This  may  be  done  by  the  simple  statement  of  counsel  that 
he  so  appears,  or  it  may  be  left  to  implication  from  the 
step  that  he  takes.^-^  Thus  he  may  enter  his  name  on  the 
docket  with  the  words,  "specially,  for  the  purpose  of 

872,  100  C.  C.  A.  342  (1910);  North-  30.  Nat.     Furnace    Co.     v.    Iron 

western,   etc.,   Bank   v.   Silberman,  Works,  18  Fed.  863  (C.  C.  1884). 

154  Fed.  809,  83  C.  C.  A.  525  (1907) ;  31.  Correll  v.  Gleider,  245  111.  378 

Perkins   v.   Hendryx,   40   Fed,   651  (1910) ;  Walling  v.  Beers,  120  Mass. 

(C.  C.  1889).     Contra,  Fort  Wayne,  548    (1876). 

etc.,    Corp.    V.    Franklin,    etc.,    Co.,  32.  Standley   v.   Arnow,    13   Fla. 

91  Fed.  292   (C.  C.  1899).  361  (1870);  Schoonover  v.  Gott,  20 

A  defendant  cannot  appear  spe-  111.  46  (1858),  misnomer;  Groves  v. 

cially  to  one  part  of  the  plaintiff's  County     Court,     42     W.     Va.     587 

case  while  demurring  or  answering  (1896);  Harkness  v.  Hyde,  98  U.S. 

to  the  rest.     National  Furnace  Co.  496   (1878);   Lathrop-Shea,  etc.,  Co. 

V.  Iron  Works,  18  Fed.  863   (C.  G.  v.  Interior,  etc.,  Co.,  150  Fed.  666 

1884).  (C.    C.    1907);    Romaine    v.    Union 

Ap  appearance  is  special,  if  that  Ins.  Co.,  28  Fed.  625   (C.  C.  1885). 

is   evidently  the  intention,  though  33.  Nye    v.    Liscombe,    21    Pick, 

signed   "attorney   for  the   defend-  (Mass.)  263  (1838). 

ant."     Eeedy  v.  Howard,  11  S.  D.  34.  Brown    v.    Webber,    6    Gush. 

160  (1898).  (Mass.)    564    (1850). 

29.  See  notes  12  to  18,  <ante,  pp.  35.  The  nature  of  the  step  taken 

346  et  seq.  must  be  the  controlling  considera- 
Whitehouse  E.  P.  Vol.  I — 23 


354 


EQUITY  PRACTICE 


objecting  to  the  jurisdiction,"  or  simply  the  word 
"specially,"  and  then  make  his  motion  for  dismissal 
orally  or  in  writing,  or  he  need  make  no  entry  on  the 
docket  but  simply  file  a  motion  in  writing  for  dismissal 
of  the  suit  for  want  of  jurisdiction  over  the  person,  and 
setting  out  the  grounds  of  such  want  of  jurisdiction.  In 
either  case,  a  motion  seems  to  be  the  only  safe  form  of 
pleading  to  employ  in  making  a  special  appearance,  and 
where  the  facts  showing  the  failure  of  jurisdiction  do  not 
appear  on  the  record,  they  should  be  set  out  in  the  motion 
and  verified  by  affidavit.-^'^ 

§  186.  Effect  of  special  appearance.     A  special  appear- 
ance enables  a  defendant  to  object  to  the  jurisdiction 


tion  in  the  end,  since  from  the 
definition  of  a  special  appearance 
as  one  to  take  advantage  only  of 
want  of  jurisdiction  over  the  per- 
son, where  the  appearance  is  really 
for  any  other  purpose  it  will  be 
held  general  in  spite  of  the  entry 
of  the  qualifying  word  "specially" 
on  the  docket.  Norfolk,  etc.,  E. 
Co.  V.  Consolidated,  etc.,  Co.,  Ill 
Va.  13  (1910);  Mahr  v.  Union  Pa- 
cific E.  Co.,  140  Fed.  921  (C.  C. 
1905).  So  in  National  Furnace  Co. 
V.  Iron  Works,  18  Fed.  863  (C.  C. 
1884),  the  defendant  was  refused 
leave  to  appear  specially  and  at 
the  same  time  demur  to  a  part  of 
the  bill  and  answer  to  another 
part. 

It  is  said  in  some  cases  that  the 
court  should  not  permit  a  special 
appearance  to  be  filed  except  ac- 
companied with  a  stipulation  or 
undertaking  to  enter  a  general  ap- 
pearance in  the  event  that  the  de- 
cision upon  the  special  plea  or  mo- 
tion is  decided  adversely  to  the 
defendant.  Hervey  v.  Hervey,  56 
N.  J.  E.  424,  56  N.  J.  E.  166 
(1897-8);     Eomaine     v.     Insurance 


Co.,  28  Fed.  625  (C.  C.  1888).  But 
in  Boland  v.  Mason,  66  Pa.  St.  138 
(1870),  after  a  decision  against  the 
defendant  in  ejectment  upon  a  spe- 
cial appearance,  he  refused  to  enter 
a  general  appearance,  and  it  was 
held  that  he  had  a  right  so  to  do; 
see  also  McNab  v.  Bennett,  66  111. 
157    (1872),   to   similar   effect. 

36.  On  account  of  such  decisions 
as  New  Jersey  v.  New  York,  6  Pet. 
(U.  S.)  323,  8  L.  ed.  414  (1832), 
and  Ogdensburg  E.  Co.  v.  E.  Co., 
63  N.  Y.  176  (1875),  it  hardly 
seems  safe  to  employ  a  demurrer 
to  raise  the  objection  of  want  of 
jurisdiction  over  the  person  when 
apparent  on  the  record,  or  a  plea  in 
abatement  to  raise  such  objection 
when  apparent  only  from  matters 
outside  the  record,  even  though  the 
plea  or  demurrer  be  confined  solely 
to  the  special  defect  of  jurisdiction. 
On  principle,  however,  it  would 
seem  immaterial  whether  motion, 
plea  or  demurrer  be  used,  so  long 
as  the  pleading  raises  solely  the 
jurisdictional  question.  See  notes 
17  and  18,  ante,  pp.  347,  348. 


APPEARANCE 


355 


without  waiving  the  very  jurisdictional  defect  which  he 
is  seeking  to  take  advantage  of,  and  thus  submitting  his 
person  to  the  jurisdiction  of  the  court,^'^  as  in  the  case  of 
a  general  appearance.^^  So  a  special  appearance  subse- 
quent to  a  decree  asking  leave  to  make  a  motion  to  strike 
the  case  from  the  docket  on  the  ground  that  no  process 
was  served,  does  not  waive  the  service  and  impart  valid- 
ity to  the  decree  where  it  is  otherwise  void.^^  Nor  is  such 
a  jurisdictional  defect  cured  by  answering  to  the 
merits  after  a  motion  has  been  overruled,  and  the  objec- 
tion may  still  be  taken  in  the  appellate  court,  but  the 
plaintiff  must  save  his  rights,  by  exception  or  otherwise, 
to  the  ruling  of  the  court,  and  it  must  appear  that  noth- 
ing was  asked  of  the  court  except  to  determine  the  objec- 
tion before  pleading  to  the  merits.^*^  However,  according 
to  some  decisions,  such  an  appearance  is  waived  by  going 
to  a  hearing  on  the  merits. ^^ 


37.  Ellsworth  Trust  Co.  v.  Par 
ramore,  108  Fed.  906,  48  C.  C.  A 
132  (1901);  United  States  v.  Bell 
Tel.  Co.,  29  Fed.  17  (C.  C.  1886) 
Eomaine  v.  Union  Ins.  Co.,  28  Fed 
625   (C.  C.  1888). 

When  a  defendant  appears  spe 
cially  by  attorney,  there  is  no  way 
of  serving  on  him  a  notice  of  a 
motion  to  amend  the  officer's  re- 
turn of  service.  Kidd  v.  Dough- 
erty, 59  Mich.  240   (1886). 

A  special  appearance  does  not 
become  general  by  the  filing  of  a 
motion  for  further  time  for  plead- 
ing. Wade  V.  Wade 's  Admr.,  81 
Vt.  275  (1908).  And  in  Citizens 
Savings,  etc.,  Co.  v.  Illinois,  etc., 
E.  Co.,  205  U.  S.  46,  51  L.  ed,  703 
(1906),  it  was  held  that  the  benefit 
of  a  qualified  appearance  was  not 
waived  by  arguing  the  merits  as 
shown  by  the  bill,  when  there  was 
no  motion  to  dismiss  for  want  of 
equity,     and     discussion     of     the 


merits  was  invited  or  permit- 
ted by  the  court  in  order  that  it 
might  be  informed  on  that  ques- 
tion if  it  concluded  to  consider  the 
merits. 

38.  Sec.   182,  ante,  p.  348. 

39.  Dorr  v.  Giboney,  3  Hughes 
(C.  C.  U.  S.)  382,  Fed.  Cas.  4,006 
(1878);  Correll  v.  Greider,  245  111. 
378  (1910);  Thomson  v.  Patek, 
235   111.   341    (1908). 

40.  Walling  v.  Beers,  120  Mass. 
548  (1876);  Chicago  Big.,  etc.,  Co. 
v.  Pewthers,  10  Okla.  628,  724 
(1901);  Harkness  v.  Hyde,  98 
U.  S.  496,  25  L.  ed.  237  (1878); 
Central  Grain,  etc..  Exchange  v. 
Bd.  of  Trade,  125  Fed.  463,  60  C.  C. 
A.  299  (1903);  Baltimore,  etc.,  E. 
Co.  v.  Freeman,  112  Fed.  237,  50 
C.  C.  A.  211   (1901). 

41.  In  the  following  cases  a  spe- 
cial appearance  was  held  waived 
by  going  to  a  hearing  on  the 
merits,  and  in  such  of  these  cases 


356 


EQUITY  PRACTICE 


If  a  writ  of  error  is  prosecuted  from  a  judgment  entered 
without  jurisdiction  of  the  person,  the  defendant  will  be 
held  in  further  proceedings  to  have  appeared  generally.^^ 


as  the  jurisdictional  defect  had  not 
been  pressed  to  an  adverse  deci- 
sion, it  seems  that  the  court  would 
have  decided  the  same  if  such  had 
been  the  case.  Rumeli  v.  Tampa, 
48  Fla.  112  (1904);  Stevens  v. 
Bradley,  24  Fla.  20  (1888);  Frank- 
lin Ins.  Co.  V.  Hukson,  197  111.  117 
(1902);  Kinsella  v.  Kahn,  185  111. 
208  (1900);  Stevens  v.  Harris,  99 
Mich.  230  (1894);  Austin  v.  Bur- 
roughs, 62  Mich.  181  (1886);  Mc- 
Cullough  V.  Railway  Mail  Assn., 
225  Pa.  118  (1909).  But  in  many 
cases      where      pleading      to      the 


merits  has  been  held  to  waive  a 
sjjecial  appearance,  the  issue  on 
the  special  appearance  had  not 
been  decided  by  the  court,  e.  g. 
Sanderson  v.  Bishop,  171  Fed. 
769  (C.  C.  1909). 

42.  Drew  Lumber  Co.  v.  Walter, 
45  Fla.  252  (1903);  but  the  bring- 
ing of  a  writ  of  error  in  relation 
to  a  decree  which  on  petition  the 
court  had  refused  to  open  for  de- 
fective service,  was  held  not  to  be 
a  general  appearance  in  Correll  v. 
Greider,  245  111.  378   (1910). 


CHAPTER  IX 

TAKING  THE  BILL  PRO  CONFESSO 

§  187.  Taking  the  bill  pro  conf esso  for  want  of  appear- 
ance. Though  the  defendant  may  have  been  duly  served 
with  process,  he  may  nevertheless  wholly  fail  to  appear. 
Such  failure  to  appear  after  a  certain  time  is  equivalent 
to  a  default  in  an  action  at  law,  and  the  defendant  is 
thereby  held  to  have  admitted  the  plaintiff's  case.  The 
proper  proceeding  to  take  advantage  of  such  failure  to 
appear  is  a  motion  to  take  the  bill  pro  conf  esso} 


1.  The  practice  of  taking  bills 
pro  confesso  is  of  comparatively 
recent  origin.  The  plaintiff  was 
by  the  earlier  practice  still  re- 
quired to  prove  the  substance  of 
his  bill.  Moreover  after  the  prac- 
tice of  taking  bills  pro  confesso 
came  into  use,  it  was  not  resorted 
to  until  after  the  capias  writ  for 
the  sequestration  of  the  defend- 
ant's property  had  failed  to  com- 
pel an  appearance.  But  as  the  ne- 
cessity of  compelling  an  appearance 
before  a  decree  could  be  rendered 
has  now  been  done  away  with,  the 
modern  practice  is  to  take  the  bill 
pro  confesso  at  once,  within  a 
stated  time  after  failure  to  ap- 
pear, without  any  compulsory  ap- 
pearance or  answer.  Of  course  if 
an  answer  be  indispensable,  as  in 
bills  of  discovery,  an  answer  must 
be  compelled  by  process  for  con- 
tempt, in  those  jurisdictions  where 
discovery  is  still  of  use,  but  there 
is   no  need   of  this   where  the  bill 


is  for  relief.  All  that  is  required 
in  such  case  is  an  admission  of 
facts,  which  is  accomplished  by 
taking  the  bill  pro  confesso.  See 
Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  517, 
and  opinion  of  Chancellor  Kent  in 
Caines  v.  Fisher,  1  Johns.  Ch. 
(N.  Y.)   8   (1814). 

Statutes  or  chancery  rules  gen- 
erally provide  expressly  for  taking 
a  bill  pro  confesso  upon  the  failure 
of  the  defendant  to  enter  his  ap- 
pearance within  the  time  limited 
by  rule  or  statute.  These  rules  and 
statutes  fixing  the  time  for  enter- 
ing appearance  are  summarized  in 
Ch.  VIII,  note  5  ante,  p.  342.  Fol- 
lowing are  the  rules  and  statutes 
relating  to  pro  confesso  for  failure 
to  appear: 

Delaware.  Pro  confesso  for  non- 
appearance can  be  taken  at  once 
against  a  non-resident  or  abscond- 
ing defendant  who  has  been  served 
by  publication,  and  against  a  cor- 
poration  duly  served,   for  lack   of 


357 


358 


EQUITY  PEACTICE 


§  188.  — For  want  of  defence.     The  proper  method  of 
taking  advantage  of  defendant 's  failure  to  plead,  answer 


appearance  within  three  days 
after  the  return  day;  but  in  the 
ease  of  other  defendants  duly 
served,  pro  confesso  issues  only 
after  attachment  process  to  com- 
pel appearance  has  failed  of  ser- 
vice, and  after  the  expiration  of 
the  time  set  by  an  order  requiring 
appearance  and  answer  within 
three  months.  Eq.  Eules  18,  33,  34. 
See  also  E.  C.  1893,  Ch.  95,  Sees. 
5  to  11. 

Maine.  Pro  confesso  may  be  had 
when  there  is  a  default  of  appear- 
ance, decree  to  issue  after  ten  days 
from  filing  the  motion  therefor. 
E.  S.  Ch.  79,  Sec.  16. 

Maryland.  In  default  of  appear- 
ance within  the  time  allowed,  the 
plaintiff  may  at  his  election  obtain 
an  order  pro  confesso  as  of  course 
against  the  non-appearing  defend- 
ants. Code,  Art.  16,  Sec.  140;  Eq. 
Eule  12. 

Massachusetts.  Fro  confesso  may 
be  had  if  defendant  does  not  "ap- 
pear and  file"  his  pleadings  "with- 
in one  month  after  the  day  of 
appearance."     Eq.   Eule   8. 

Michigan.  Fro  confesso  may  be 
had  when  a  defendant  against 
whom  an  order  to  appear  has  is- 
sued fails  to  appear  within  the 
time  limited.  Comp.  L.  Ch.  29, 
Sees.  81-84.  Fro  confesso  may  be 
had  whenever  a  defendant  fails  to 
appear.     Eq.   Eule   7    (b). 

Mississippi.  No  express  provi- 
sion in  the  code.  A  decree  pro  con- 
fesso may  be  taken  "when  the  de- 
fendant fails  to  appear."  Eein- 
ecke  V.  Eeinecke,  63  So.  215  (Miss. 
1913). 

New    HampsMre.      Fro    confesso 


may  be  had  for  failure  to  appear 
at  the  return  term.    Eq.  Eule  92. 

Pennsylvania.  Fro  confesso  may 
be  had  if  appearance  is  not  en- 
tered and  answer  filed  within  the 
time  limited  by  the  rules.  Eq. 
Eule  13. 

Rhode  Island.  Fro  confesso  may 
be  had  when  "no  appearance  has 
been  entered  .  .  .  and  .  .  . 
no  answer,  plea  or  demurrer  has 
been  filed"  within  the  time  lim- 
ited by  the  rules.  G.  L.,  Ch.  289, 
Sec.  10. 

Tennessee.  Fro  confesso  may  be 
had  against  a  defendant  who  fails 
to  enter  his  appearance  after  an 
order  for  his  appearance  has  been 
published.     Code,  Sec.  6179. 

Vermont.  Fro  confesso  may  be 
had  against  non-resident  defend- 
ants who  fail  to  appear  pursuant 
to  special  orders  taken  against 
them.  P.  S.  Ch.  65,  Sees.  1245, 
1246,  1247  as  amended  by  Laws 
of  1908,  Nos.  53,  54;  1910,  No.  77. 
Pro  confesso  may  be  entered  if 
defendant  fails  to  appear  within 
the  time  limited  by  the  rules;  but 
must  not  be  filed  within  ten  days 
from  the  time  for  entering  appear- 
ance; and  must  be  entered  within 
six  months  unless  new  service  is 
had.  Laws  of  1908,  No.  55,  Sec. 
2;  Eq.  Eules  9,  34. 

Virginia.  If  the  defendant  fails 
to  appear,  a  "conditional  judg- 
ment" or  "decree  nisi"  may  be 
taken  against  him,  which  becomes 
a  decree  pro  confesso  if  he  does 
not  appear  before  the  next  rule 
day.     Code,   Sec.   3284. 

West  Virginia.  (Same  as  Vir- 
ginia.)     Code   1913,  Sec.  4798. 


TAKING  BILL  PRO  CONPESSO 


359 


or  demur  within  the  proper  time  is  to  have  the  bill  taken 
pro  confesso?    In  those  jurisdictions  where  there  are  no 


2.  Alabama.  A  decree  pro  con- 
fesso  may  be  taken  on  the  failure 
of  the  defendant  to  demur,  plead 
to  or  answer  the  bill  within  thirty 
days  after  service,  after  period 
specified  by  an  order  of  publica- 
tion duly  perfected,  or  at  the  ex- 
piration of  any  extended  time  al- 
lowed him  for  pleading.  Code, 
Sees.  3107,  3162. 

Delaware.  A  decree  pro  confesso 
may  be  had  if  answer,  demurrer 
or  plea  is  not  filed  according  to 
the  rule  therefor.  Eq.  Eule  32. 
Answer,  plea  or  demurrer  is  to  be 
filed  on  the  first  Monday  of  the 
next  month  after  the  return  of 
the  subpoena.  Eq.  Eule  25;  Laws 
of  Del.  Vol.  67,  Ch.  215. 

Florida.  A  decree  pro  confesso 
may  be  had  on  failure  of  defend- 
ant to  file  plea,  demurrer  or  an- 
swer on  the  next  rule  day  after 
that  succeeding  the  one  fixed  for 
entry  of  appearance;  unless  the 
time  be  enlarged  for  cause  shown. 
G.  S.,  See.  1896;  Eq.  Eule  44.  The 
bill  may  also  be  taken  pro  confesso 
when  the  defendant  fails  to  an- 
swer over  after  demurrer  over- 
ruled. Eay  V.  Frank,  44  Fla.  681 
(1902).  See  also  G.  S.  Sec.  1873; 
Eq.  Eule  51. 

Pro  confesso  may  be  taken 
against  a  defendant  on  the  expira- 
tion of  the  usual  time  for  pleading, 
although  at  the  time  a  motion  for 
extension  of  time  for  pleading  is 
pending,  when  the  defendant  has 
neglected  to  have  the  motion  dis- 
posed of,  especially  if  the  court  be- 
lieves the  motion  unfounded.  Pow- 
ers v.  Scales,  61  Ela.  717  (1911). 

Illinois.     The  bill  may  be  taken 


as  confessed  if  defendant  does  not 
except,  demur,  plead  or  answer  on 
the  return  day  of  the  summons,  or 
if  the  summons  is  not  served  ten 
days  before  the  first  day  of  the 
term  at  which  it  is  returnable  by 
the  first  day  of  the  next  term;  or 
in  case  of  service  by  copy  of  bill 
or  by  notice,  at  the  expiration  of 
the  time  required,  or  within  such 
further  time  as  the  court  grants. 
J.  &  A.^  11  896;  Kurd's  St.,  Ch.  22, 
Sec.  16.' 

Pro  confesso  may  also  be  granted 
on  failure  of  the  defendant  to  an- 
swer over  after  demurrer  over- 
ruled. Clark  v.  Evans,  138  111. 
App.  56  (1907). 

Maine.  Decree  pro  confesso  may 
be  had  if  pleading  is  not  filed 
within  thirty  days  from  lapse  of 
time  for  appearance,  or  within  the 
time  ordered  by  the  court.  E.  S. 
Ch.   79,  Sec.   17. 

Maryland.  In  default  of  an- 
swer, plea,  or  demurrer,  within 
twenty  days  after  appearance 
within  the  time  allowed,  the  plain- 
tiff may  have  the  bill  taken  pro 
confesso.  Code,  Art.  16,  Sees.  139, 
140;  Eq.  Eules  11,  12.  So  also  on 
failure  to  answer  over  after  de- 
murrer overruled,  or  when  plea  or 
demurrer  was  frivolous  or  vex- 
atious. Code,  Art.  16,  Sec.  152; 
Eq.  Eule  22. 

Massachusetts.  Pro  confesso 
may  be  had  if  defendant  does  not 
"appear  and  file"  his  pleadings 
' '  within  one  month  after  the  day 
of  appearance."     Eq.  Eule  8. 

Michigan.  The  plaintiff  may  file 
an  order  to  take  the  bill  pro  con- 
fesso   if    the    defendant    fails    to 


360 


EQUITY  PRACTICE 


provisions  for  apiaearance  as  distinguished  from  filing  a 
pleading  in  defence,  the  neglect  to  file  a  pleading  is  the 


plead,  answer  or  demur  within  fif- 
teen days  after  receiving  copy  of 
the  bill.  ■  But  the  court  may  ex- 
tend the  time  for  pleading.  Eq. 
Rules  5,  6,  7. 

Mississippi.  Decree  pro  confcsso 
may  be  had  if  defendant  fails  to 
plead  by  the  first  day  of  the  term, 
if  process  is  returnable  to  a  reg- 
ular term,  or  by  the  monthly  rule 
day  next  after  process  is  return- 
able if  it  is  returnable  in  vacation. 
But  the  court  may  extend  the  time 
for  pleading.     Code,  Sees.  600,  601. 

New  Hampshire.  The  bill  shall 
be  taken  pro  confesso  if  the  de- 
fendant fails  to  deliver  to  plain- 
tiff's solicitor  his  pleading  within 
two  months  after  service  of  sub- 
poena, the  answer  to  be  filed  on 
the  return  day  if -the  bill  is  filed 
less  than  two  months  before  the 
next  term.  The  court  for  cause 
may  extend  the  time  to  answer. 
Eq.  Rules  91,  92.  Pro  confesso 
may  also  be  entered  on  failure  to 
plead  to  an  amended  bill.  Eq. 
Rule  9.5. 

New  Jersey.  The  bill  may  be 
taken  pro  confesso  against  ab- 
sent defendants  who  fail  to  file 
pleadings  within  the  time  lim- 
ited in  an  order  issued  by  the 
chancellor,  (if  the  order  has  been 
duly  served),  such  time  being 
from  one  to  three  months  from 
date  of  the  order.  Comp.  Stat. 
"Chancery"  Sees.  12,  14;  Eq.  Rule 
60.  Pro  confesso  may  be  taken 
when  a  third  answer  has  been  ad- 
judged insufficient.  Same,  Sec.  27. 
Or  for  failure  to  answer  over 
after    demurrer    overruled.      Same, 


Sec.  23.  For  failure  of  a  de- 
fendant who  has  been  duly  served 
to  file  his  pleading  within  thirtj' 
days  from  return  date  of  sub- 
poena, unless  the  chancellor  ex- 
tends the  time,  pro  confesso  may 
be  had  in  term  time  or  in  vacation. 
Same,  Sees.  22,  23.  No  pro  confesso 
can  be  taken  after  four  months 
from  the  time  when  the  plaintiff  is 
first  entitled  to  it,  except  after 
notice  to  the  defendants.  Eq.  Rule 
27. 

Pennsylvania.  On  filing  his  bill, 
plaintiff  may  have  a  rule  requiring 
defendant  to  file  his  pleading 
within  thirty  days  after  service 
of  notice  of  such  rule;  in  default 
of  compliance  therewith  the  bill 
may  be  taken  pro  confesso.  Eq. 
Rules  13,  29.  Pro  confesso  may 
also  be  taken  on  failure  to  answer 
over  after  demurrer  overruled,  and 
where  plea  or  demurrer  was  filed 
frivolously  or  for  vexation  and  de- 
lay.    Eq.  Rule  36. 

Rhode  Island.  Decree  pro  con- 
fesso may  be  entered  ex  parte  on 
plaintiff's  motion  if  "no  appear- 
ance has  been  entered  .  .  .  and 
.  .  .  no  answer  plea  or  demur- 
rer has  been  filed"  within  thirty 
days  after  the  return  day  or 
within  such  further  time  as  may 
be  allowed  on  motion  for  cause 
shown,  which  decree  becomes  con- 
clusive after  five  days  from  jts 
entry.     G.  L.  Ch.  289,  Sees.  6,  10. 

Tennessee.  The  bill  may  be 
taken  i}ro  confesso  fox  failure  of 
defendant  who  has  been  duly 
served  to  file  pleading  within  the 
time  fixed  by  law;  for  failure  of 
defendant  served  by  publication  to 


TAKING  BILL  PRO  CONFESSO 


361 


only  ground  for  pro  confesso;  ^  but  in  most  jurisdictions 
pro  confesso  may  be  had  either  because  of  failure  to 
appear,  as  mentioned  above,  or  for  failure  to  file  a  defence 
even  after  appearance  entered.^ 

An  insufficient  answer  may  be  treated  as  no  answer, 
and  the  whole  bill  taken  pro  confesso,^  or  if  the  plaintiff 
l^refers,  only  those  facts  of  the  bill  not  answered  may  be 


cause  his  appearance  to  be  entered 
and  to  file  pleadings  or  obtain 
time;  for  refusal  of  defendant 
brought  into  court  on  contempt 
process  to  answer  sufficiently;  for 
defendant 's  failure  to  answer  after 
after  plea  or  demurrer  overruled 
or  after  exceptions  to  first  answer 
allowed.  Code,  Sees.  6179,  6205, 
6217.  See  also  Sec.  6146  regard- 
ing pro  confesso  after  amendment 
filed. 

Vermont.  Pro  confesso  shall  be 
taken  when  plea  or  demurrer  is 
overruled;  when  a  new  answer 
after  exceptions  sustained  is  held 
insufficient;  and  for  failure  to  an- 
swer. If  the  pro  confesso  is  not 
taken  within  six  months  after  the 
time  when  plaintiff  is  entitled  to 
it,  he  cannot  move  such  decree  un- 
til after  notice  on  the  defendant, 
if  in  the  state,  to  file  an  answer. 
Eq.   Rules   16,  27,  29,  34. 

Virginia.  If  a  defendant  ap- 
pear but  fails  to  file  pleading,  a 
rule  may  be  given  him  to  plead. 
At  the  expiration  of  the  rule,  the 
bill  may  be  entered  pro  confesso. 
Code,  Sec.  3284.  Pro  confesso  may 
also  be  entered  for  failure  to  an- 
swer over  after  demurrer  over- 
ruled.    Code,  Sec.  3273. 

West  Virginia.  (Substantially 
same  as  Virginia,  Sees.  3273,  3284). 
Code,  Sees.  4784,  4798.  A  rule  to 
answer  is  necessary  before  i)ro 
confesso  after  demurrer  overruled. 


Eoss  v.  Ross,  78  S.  E.  789  (W.  Va. 
1913). 

United  States.  If  defendant 
fails  to  file  pleading  within  twenty 
days  after  service,  unless  the  time 
is  extended  for  cause,  the  bill  may 
be  taken  pro  confesso.  Eq.  Rules 
12,   16. 

3.  E.  g.,  Alabama,  Illinois,  Mis- 
sissippi, New  Jersey,  United 
States.  See  Ch.  VIII,  Sec.  177, 
note  5,  ante,  p.  342. 

4.  A  decree  pro  confesso  erron- 
eously made  as  for  the  lack  of  an 
appearance  was  sustained  where 
the  appearance  had  been  entered 
but  answer  had  not  been  filed 
within  the  proper  time,  in  Har- 
rison V.  Morton,  87  Md.  671  (1898). 
But  in  general,  it  is  erroneous  to 
enter  a  decree  i^ro  confesso  when 
there  is  a  plea  or  answer  on  file. 
Griswold  v.  Brock,  29  111.  App.  423 
(1888);  Smith  v.  Cozart,  45  Miss. 
698  (1871);  Young  v.  Young,  17 
]Sr.  J.  E.  161   (1864),  semble. 

A  cross  bill  may  be  taken  pro 
confesso.  Coach  v.  Kent,  Circ.  J., 
97   Mich.   563    (1893). 

5.  Florida.  Ocala,.  v.  Anderson, 
58  Fla.  415    (1909). 

Illinois.  Yates  v.  Continental, 
etc.,  Co.,  207  111.  512  (1904). 

Michigan.  Cummings  v.  Corey, 
58  Mich.  494   (1885),  semble. 

Mississippi.  Smith  v.  Cozart,  45 
Miss.  698  (1871),-  semble. 


362 


EQUITY  PRACTICE 


taken  as  confessed.^  So  where  amendments  to  a  bill 
have  been  allowed,  although  the  defendant  may  already 
have  answered  the  original  bill  he  must  also  answer  the 
amendments,  or  the  whole  bill  may  be  taken  as  con- 
fessed,'^ and  it  would  seem  on  principle  that  where  the 
plaintiff  prefers,  he  ought  to  be  allowed  to  have  an  order 
to  take  the  bill  pro  confesso  as  to  the  amendments  only; 
and  such  is  occasionally  the  practice,'^  but  in  general 
chancery  practice  the  doctrine  seems  settled  the  other 
way.**  Legal  service  of  process  upon  a  party  is  indis- 
pensable to  the  validity  of  a  decree  pro  confesso  against 
him  for  lack  of  appearance  or  defence.^ *^ 


Tennessee.  Lea  v.  Vanbibber,  G 
Humph.    (Tenn.)    18    (18-45). 

United  States.  Computing  Scale 
Co.  V.  Moore,  139  Fed.  197  (1905), 
semhle,  here  unverified  plea;  Am. 
Steel,  etc.,  Co.  v.  Unions,  90  Fed. 
598  (1898),  semMe,  here  defective 
demurrer. 

But  it  was  held  in  Ewing  v- 
Blight,  3  Wall.  Jr.  134,  Fed.  Gas. 
4,589  (1855)  that  the  failure  to 
verify  a  plea  does  not  entitle  the 
plaintiff  to  have  the  bill  entered 
pro  confesso. 

Pro  confesso  may  be  entered  on 
failure  to  file  answer  to  interroga- 
tories after  answer  has  been  filed 
to  the  bill.  Rosenau  v.  Powell, 
63  So.  1020  (Ala.  1913).  Or  for 
failure  to  file  suflaeient  answer 
after  exceptions  allowed.  See 
Chapter  XIII,  "Answers,"  Sec- 
tions 272  to  276,  post,  pp.  468  et  seq., 
and  especially  the  rules  and  stat- 
utes cited  in  note  96,  post,  p.  476. 

6.  Smith  V.  Mutual,  etc.,  Co.,  2 
Tenn.  Ch.  599  (1876),  semble; 
Hale  V.  Continental,  etc.,  Co.,  20 
Fed.  344   (1884). 

7.  Insurance  Co.  v.  Jenkins,  8 
Paige  (N.  Y.)  589  (1841). 


But  a  bill  cannot  be  taken  pro 
confesso  for  failure  to  answer  im- 
material amendments.  Black  v. 
Lusk,  69  111.  70  (1873).  Or  where 
the  amendments  were  improper  un- 
der the  rules.  International,  etc., 
Co.  V.  Vause,  55  Fia.  641  (1908). 

8.  Alabama,  Eq.  Rules  46,  48; 
Mississippi,  Code,  Sec.  595. 

9.  Dan.  Ch.  Pr.,  (6th  Am.  ed.) 
624,  citing  Jopling  v.  Stuart,  4  Ves. 
619;  Bacon  v.  Griffith,  4  Ves.  619n., 
2  Dick.  473.  In  Tedder  v.  Stiles, 
16  Ga.  1  (1854),  there  is  a  discus- 
sion of  the  question  and  author- 
ities are  cited. 

A  decree  pro  confesso  may  be 
had  against  a  defendant  already 
in  court  who  fails  to  answer  a  sup- 
plementary bill  after  a  rule  for 
that  purpose.  Mix  v.  Beach,  46 
111.  311   (1867). 

10.  Florida.  Sarasota,  etc.,  Co. 
v.  Lyle,  53  Fla.   1069   (1907). 

Illinois.  Clark  v.  Hogle,  52  111. 
427   (1869). 

Maryland.  Hurtt  v.  Crane,  36 
Md.   29    (1872). 

Michigan.  Outhwite  v.  Porter, 
13  Mich.  533   (1865). 

Mississippi.     Chewning  v.   Nich- 


TAKING  BILL  PRO  CONFESSO 


363 


§  189.  Several  defendants.  It  is  error,  of  course,  to 
take  the  bill  pro  confesso  against  several  defendants 
when  process  has  been  served  on  only  one.^^  The  proper 
mode  of  procedure  when  a  bill  makes  a  joint  charge 
against  several  defendants  and  one  of  them  makes 
default,  is  simply  to  enter  a  default  and  a  formal  decree 
pro  confesso  against  him,  and  proceed  with  the  cause 
upon  the  answers  of  the  other  defendants.^^  But  if  the 
subsequent  defences  made  by  the  other  defendants  dis- 
prove the  plaintiff's  case,  the  bill  will  be  dismissed  as  to 
all  the  defendants. ^^ 

When  there  are  several  defendants,  one  of  whom  is  a 
non-resident  who  has  had  notice  of  the  suit,  but  who  does 
not  appear  and  answer,  if  no  decree  is  sought  against 


ols,  1  Sm.  &  M.  Ch.  (Miss.)  122 
(1843); 

Tennessee.  Blanton  v.  Hall,  49 
Tenn.  423   (1871). 

West  Virginia.  Billmyer  Lum- 
ber Co.  V.  Merchants  Coal  Co.,  66 
W.    Va.    696    (1910). 

Statutory  requirements  as  to  ser- 
vice on  non-residents  or  by  publi- 
cation must  be  strictly  complied 
with.  Holly  v.  Bass,  63  Ala.  387, 
391  (1879);  Gibbens  v.  Pickett,  31 
Fla.  147  (1893);  Tompkins  v.  Wilt- 
berger,  56  111.  385  (1870);  Central 
Bank  v.  Copeland,  18  Md.  305 
(1862);  King  v.  Harrington,  14 
Mich.  532  (1866);  Grewar  v.  Hen- 
derson, 1  Tenn.  Ch.  76   (1872). 

The  validity  of  the  service  can- 
not be  impeached  in  collateral  pro- 
ceedings. McCahill  v.  Equitable 
Co.,  26  N.  J.  E.  531  (1875):  Eob- 
ertson  v.  Winchester,  85  Tenn.  171 
(1886). 

11.  McCoy  v.  McCoy,  9  W.  Va. 
443   (1876). 

So  also  it  is  error  to  take  the 
bill   pro   confesso   against   one  who 


answers  where  another  has  failed 
to  answer.  Fulton  v.  Woodman,  54 
Miss.   158    (1876). 

12.  Frow  V.  DeLaVega,  15  Wall. 
552,  21  L.  ed.  60  (1872). 

One  who  appears  and  answers 
cannot  question  the  form  as 
against  one  held  pro  confesso, 
where  distinct  charges  were  made 
and  different  relief  sought  against 
each.  Millard  v.  Tripp,  2  E.  I.  543 
(1853). 

13.  Kelly  v.  Brooks,  57  Miss. 
225  (1879);  Dunsc'omb  v.  Wallace, 
105  Tenn.  385  (1900);  Kopper  v. 
Dyer,  59  Vt.  477  (1887);  Terry  v. 
Fontaine,  83  Va.  451    (1887). 

But  where  the  defense  is  per- 
sonal to  the  defendant  proving  his 
case,  it  does  not  enure  to  the  bene- 
fit of  the  defendant  who  is  in  de- 
fault. Simpson  v.  Moore,  73  Tenn. 
372  (1880).  And  error  in  a  decree 
pro  confesso  against  one  defendant 
cannot  be  taken  advantage  of  by 
another  who  was  not  sued  on  a 
joint  matter.  VanValkenberg  v. 
Trustees,  66  111.  103  (1872). 


364 


EQUITY  PRACTICE 


him  by  which  his  rights  will  be  prejudiced,  the  bill  may 
be  taken  pro  confesso  as  to  him.^^ 

§  190.  Infants.  A  bill  cannot  be  taken  pro  confesso 
against  an  infant  defexidant,  for  it  is  a  well  settled  prin- 
ciple that  before  a  decree  can  pass  against  an  infant 
defendant  in  equity,  full  proof  must  be  made  against 
him.^^ 

§  191.  Decree  pro  confesso  merely  interlocutory.  A 
decree  that  the  bill  be  taken  pro  confesso  is  merely  a 
preliminary  order  or  interlocutory  decree.^®  The  final 
decree  in  the  cause  has  still  to  be  made.  This  clear  dis- 
tinction between  a  decree  that  the  bill  be  taken  pro 
confesso  and  the  final  decree  granting  appropriate  relief 
on  the  statements  of  the  bill  thus  taken  as  true  must  be 
borne  in  mind.  Where  there  is  no  statute  whose  terms 
are  regarded  as  mandatory  that  an  interlocutory  decree 
pro  confesso  is  an  indispensable  prerequisite  to  a  final 
decree,  the  courts  will  often  proceed  to  a  hearing,  when 

Stevens,    49    Me. 


14.  Adams 
362    (1861). 

15.  Alabama.  Code,  Sec.  3163; 
Howell  V.  Bundle,  171  Ala.  951 
(1911);  Mitchell  v.  Hardie,  84  Ala. 
349  (1887). 

Florida.  Mote  v.  Morton,  52 
Fla.  548   (1906). 

Illinois.  Quigley  v.  Eoberts,  44 
111.  503  (1867);  Lieserowitz  v. 
West  Chicago,  etc.,  R.  Co.,  80  111. 
App.   248    (1898). 

Maine.  Tucker  v.  Bean,  65  Me. 
352   (1876). 

Maryland.  Benson  v.  Wright,  4 
Md.  Ch.  278   (1848). 

Michigan.  Peck  v.  Kent  C. 
Judge,  98  Mich.  639  (1894);  She- 
han  V.  Wayne  C.  Judge,  42  Mich. 
69   (1879). 

Mississippi.  Fort  v.  Battle,  21 
Miss.  133  (1849);  Hargrove  v. 
Martin,  6  S.  &  M.  Ch.  61  (Miss. 
1846). 


New  Hampshire.  Dow  v.  Jewell, 
21  N.  H.  470  (1850);  compare  Be- 
liviau  v.  Amoskeag  Co.,  68  N.  H. 
229   (1894). 

New  Jersey.  Shultz  v.  Sanders, 
38  N.  J.  E.  154  (1884). 

Pennsylvania.  Eogers  v.  Smith, 
4  Pa.  93   (1846). 

Tennessee.  Milly  v.  Harrison, 
7  Cold.  (Tenn.)  191  (1869);  Code, 
Sec.  6182. 

Vermont.  Walker  v.  Ferrin,  4 
Vt.  523   (1832). 

West  Virginia.  Holderley  v. 
Hogan,  57  W.  Va.  341  (1905). 

In  Alabama,  the  same  limitation 
extends  by  the  code  to  persons  of 
unsound  mind,  executors  and  ad- 
ministrators.     Code,   Sec.    3163. 

16.  Russell  V.  Lathrop,  122  Mass. 
300   (1877). 


TAKING  BILL  PRO  CONFESSO 


365 


proof  ex  parte  is  required,  or  wlien  there  are  other 
defendants,  although  a  decree  pro  confesso  has  not  been 
duly  entered  against  the  defendants  in  default,^ '^  but  this 
is  to  be  regarded  as  somewhat  informal  practice. 

§  192.  Subsequent  proceedings.  The  decree  pro  con- 
fesso being  merely  interlocutory,  it  still  remains  to  be 
determined  just  what  is  admitted  by  taking  the  bill  pro 
confesso,  what  standing  it  leaves  the  defendant  in  the 
cause,  and  on  what  basis  the  final  decree  is  to  be  made. 

It  may  be  stated  in  the  first  place  that  the  defendant 
by  his  failure  to  appear  or  to  answer  can  be  held  to  have 
admitted  only  what  is  well  pleaded  in  the  bill.  If  the 
allegations  of  the  bill  are,  on  their  face,  without  equity 
or  insufficient  to  authorize  any  relief,  no  decree  for  the 
plaintiff  will  be  granted.''^  Further,  if  the  charges  in  the 
bill  though  sufficient  to  authorize  some  relief  are  not 
stated  with  sufficient  certainty,  or  if  its  demands  are 


17.  Eushing  v.  Thompson,  20 
Fla.  583  (1884),  absence  of  formal 
decree  2^70  confesso  held  immaterial 
in  a  collateral  proceeding;  Wilson 
V.  Spring,  64  111.  14  (1872),  agree- 
ment of  parties  to  waive  lack  of 
decree  pro  confesso;  Savage  v. 
Berry,  3  111.  545  (1840);  Hambrick 
V.  Jones,  64  Miss.  240  (1886),  over- 
ruling earlier  Mississippi  cases;  La 
Grange,  etc.,  Co.  v.  Eainey,  7  Cold. 
(Tenn.)  420  (1870);  Allen  v.  New 
York,  7  Fed.  483   (1880). 

The  practice  of  entering  decree 
for  plaintiff  without  preliminary 
decree  pro  confesso  was  disap- 
proved in  Tussey  v.  Clark,  45  Pa. 
Super.  Ct.  433   (1911). 

18.  Alabama.  National,  etc., 
Assn.  v.  Ballard,  126  Ala.  155 
(1899);  .Johnson  v.  Kelley,  80  Ala. 
135   (1885). 

Florida.  Marks  v.  Baker,  20  Fla. 
920   (1884). 


Illinois.  Wing  v.  Cropper,  35  111. 
256   (1864). 

Maryland.  Robinson  v.  Towns- 
head,  3  G.  &  J.  413  (1831). 

Michigan.  McMahon  v.  Rooney, 
93  Mich.  390   (1892). 

Mississippi.  Austin  v.  Barber, 
88  Miss.  553  (1906);  West  Felici- 
ana R.  Co.  V.  Stockett,  27  Miss. 
739   (1854). 

Tennessee.  Lancaster  Mills  v. 
Cotton  Press  Co.,  89  Tenn.  1 
(1890);  Chadwell  v.  McCall,  1 
Tenn.  Ch.  640   (1874). 

United  States.  Ohio  Central  R. 
Co.  V.  Central  Trust  Co.,  133  U.  S. 
83,  33  L.  ed.  561  (1890);  Wong 
Hin  V.  Callahan,  119  Fed.  381 
(1902). 

Conversely,  a  decree  jyro  confesso 
may  be  entered  although  the  bill 
on  its  face  shows  no  cause  of 
action.  Mayberry  v.  Sprague,  207 
Mass.   508    (1911). 


366 


EQUITY  PRACTICE 


from  their  nature  indefinite  and  undetermined  in  amount 
(as  for  example  in  the  case  of  a  bill  to  foreclose  a  mort- 
gage), the  plaintiff  will  be  required  to  supply  additional 
proofs  in  order  that  a  proper  final  decree  may  be  made.^^ 
But  all  definite,  certain  and  properly  pleaded  allegations 


19.  Delaware.    Eq.  Eule  32. 

Illinois.  J.  &  A.  |898;  Kurd's 
St.,  Ch.  22,  Sec.  18. 

Maryland.  Code,  Art.  16,  Sec. 
1-10;   Eq.  Rule  12. 

Massachusetts.  Mayberry  v. 
Sprague,  207  Mass.  508  (1911). 

Michigan.  Messenger  v.  Peter, 
129  Mich.  93  (1901);  How.  Ann. 
St.,  2d  ed.,  §§  12,009-12,010,  C.  L. 
Sees.  491-492. 

Mississippi.  Freeman  v.  Led- 
better,  83  Miss.  165  (1870), 

New  Jersey.  Vanderventer  v. 
Stiger,  25  K  J.  E.  224  (1874); 
Comp.  St.  "Chancery"  Sees.  14, 
23. 

United  States.  Ohio  Central  R. 
Co.  V.  Central  T.  Co.,  133  U.  S.  83, 
33  L.  ed.  561   (1890). 

Under  the  Tennessee  code,  an 
order  pro  confesso  is  an  admission 
of  the  allegation  as  to  defendants 
■who  were  served  with  process,  but 
as  to  infants  or  non-residents 
served  by  publication  without  at- 
tachment, it  merely  puts  in  issue 
the  allegation.  Bashair  v.  Temple, 
115  Tenn.  596  (1906);  Code,  Sees. 
6181,  6182. 

It  seems  that  the  final  decree 
after  the  master's  report  or  other 
hearing  on  the  allegation  of  the 
bill,  may  be  for  the  defendant 
against  whom  the  order  jiro  con- 
fesso was  taken,  where  the  plain- 
tiff has  not  proved  his  case. 
Forbes  v.  Tuckerman,  115  Mass. 
115   (1874). 

Although  it  is  usual  to  refer  to 


a  master  the  taking  of  such  proofs 
as  are  necessary,  the  court  will  it- 
self conduct  the  hearing  if  the 
problem  involved  is  simple.  Glover 
v.  Jones,  95  Me.  303  (1901);  Ham- 
brick  V.  Jones,  64  Miss.  240  (1S86); 
compare  Meziex  v.  McGraw,  44 
Miss.  100  (1870)  contra.  And  see 
Chancery  Rules  7  of  Michigan,  22, 
23  of  New  Jersey,  and  statutory 
provisions  in  both  states. 

Since  a  decree  does  not  follow 
as  a  matter  of  course  upon  an 
order  pro  confesso,  plaintiff  in  Fed- 
eral courts  is  entitled  to  docket  fee 
as  for  a  final  hearing.  Andrews  v. 
Cole,  20  Fed.  410   (1884). 

In  Alabama,  hearing  on  the  bill 
must  not  be  on  the  same  day  on 
which  decree  pro  confesso  was 
taken.  Code,  Sec.  3165.  When  the 
matter  is  ready  for  final  decree 
however,  it  may  be  submitted  by 
the  plaintiff  to  the  chancellor  in 
vacation  as  well  as  in  term  time, 
after  ten  days  notice  in  writing  to 
the  opposite  party.  Code,  Sec.  3164 
as  amended  by  Laws  of  1911,  p. 
565. 

In  Maryland,  at  least  thirty  days 
must  elapse  between  decree  pro  con- 
fesso and  final  decree.  Code,  Art. 
16,  Sec.  140;  Eq.  Rule  12.  Similar 
provisions  are  found  in  the  rules 
and  statutes  of  other  states  in  con- 
nection with  the  provisions  for 
opening  decrees  pro  confesso  on 
petition  of  the  defendant.  See 
note  29,  post,  p.  370. 


TAKING  BILL  PRO  CONFESSO 


367 


of  the  bill  are  to  be  taken  as  true  without  further  proofj^*^ 
and  if  the  facts  alleged  in  the  bill  are  entirely  sufficient 
and  certain  and  the  relief  prayed  for  requires  no  account- 
ing, such  final  decree  may  be  obtained  thereon  either 
under  the  special  or  general  prayer  as  is  justified  by  the 
facts  thus  admitted,  on  motion  by  the  plaintiff  without 
further  hearing.^^ 

§  193.  Subsequent  rights  of  defendant.  As  to  the 
standing  and  rights  of  the  defendant  subsequent  to  a 
decree  taking  the  bill  pro  confesso,  it  may  be  said  that 
while  such  decree  is  unrevoked,  he  cannot  set  up  any 
pleading  or  evidence  in  opposition  to  the  properl}^ 
pleaded  allegations  of  the  bill.^^    But  the  defendant  still 


20.  Alabama,  Baker  v.  Young, 
90  Ala.  426  (1889);  Mobile,  etc., 
Bank  v.  McDonald,  87  Ala.  736, 
750  (1888);  McDonald  v.  Mobile 
Life  Ins.  Co.,  56  Ala.  468  (1876); 
Code,  Sec.  3163. 

Florida.  Stribling  v.  Hart,  20 
Fla.  235    (1883). 

Illinois.  Harmon  v.  Campbell, 
30  111.  25  (1862),  sevxUe. 

Maine.  Glover  v.  Jones,  95  Me. 
303   (1901). 

Massachusetts.  Hutchins  v. 
Nickerson,  212  Mass.  118  (1912). 

Michigan.  Cobell  v.  Cole,  16 
Mich.  223   (1867). 

Tennessee.  Phillips  v.  Hollister, 
42  Tenn.  269  (1865);  Code,  Sec. 
6181. 

Virginia.  Fischer  v.  Lee,  98  Va. 
159  (1900). 

West  Virginia.  Wilson  v.  Ken- 
nedy, 63  W.   Va.   1    (1907). 

United  States.  Ohio  Central  R. 
Co.  V.  Central  Trust  Co.,  133  U.  S. 
83,  33  L.  ed.  561  (1890). 

A  decree  pro  covfesso  is  conclu- 
sive of  the  same  allegations  be- 
tween the  same  parties  in  another 
suit.     Alabama,  etc.,   R.   Co.   v.   S. 


&    N.    A.    R.    R.    Co.,    84    Ala.    570 
(1887). 

21.  See  Chancery  Rules  44  of 
Florida,  12  of  Maryland,  8  of  Mas- 
sachusetts, 13  of  Pennsylvania,  and 
17  of  Vermont. 

22.  Bauerle  v.  Long,  165  111.  340 
(1897);  Hazard  v.  Durant,  11  R. 
L  195,  12  R.  L  99  (1877-8);  Thomp- 
son v.  Wooster,  114  U.  S.  104,  29 
L.  ed.  105   (1885). 

So  the  defendant  cannot  object 
to  the  bill  as  multifarious.  Paine 
V.  Slocum,  56  Vt.  504  (1884).  Or 
on  the  ground  that  the  bill  has 
a  formal  defect.  Findlay  v.  Hinde, 
1  Pet.  241,  7  L.  ed.  128  (1828). 
Or  on  the  ground  of  an  adequate 
remedy  at  law.  Brown  v.  Iron  Co., 
134  U.  S.  530,  33  L.  ed.  1021 
(1889);  Electric  Co.  v.  Reedy,  66 
Fed.  163  (1895).  Or  on  the  ground 
of  the  applicability  of  the  statute 
of  limitations.  Patterson  v.  In- 
graham,  23  Miss.  87  (1851).  Or 
for  lack  of  parties.  Thornton  v. 
Neal,  49  Ala.  590   (1873). 

Where  the  defendant  after  a 
decree  pro  confesso  is  permitted  to 
be    heard,    it   is    only   as    a   favor. 


368 


EQUITY  PKACTICE 


has  the  right,  on  waiving  all  objections  to  the  order  for 
taking  the  bill  pro  confesso,  to  appear  and  argue  against 
the  merits  of  the  plaintiff's  claim,  and  show  if  he  can  that 
the  plaintiff  is  not,  upon  his  bill  unanswered,  entitled  to 
a  decree  against  him,^^  He  may  also  appear  before  the 
master,  if  the  case  is  referred  to  a  master  for  an  account, 
or  before  the  court  if  the  hearing  is  before  the  court, 
and  contest  the  amount  of  the  plaintiff's  claim.^^  He  also 
has  the  right  when  he  has  appeared  but  failed  to  answer, 
to  be  heard  upon  the  form  of  the  final  decree-^  and  to 
appeal  therefrom.-*^    It  would  seem  that  he  should  also 


Provident  L.  &  T.  Co.  v.  Camden, 
etc.,  E.  Co.,  177  Fed.  854,  101  C. 
C.  A.  68  (1910).  And  when  the 
lower  court  allows  this,  the  upper 
court  cannot  review  the  action. 
White  V.  White,  169  Mass.  52 
(1897). 

The  plaintiff  may  of  course 
waive  the  benefit  of  an  order  pro 
confesso.  Johnson  v.  Van  Nelson, 
43  Mich.  208   (1880). 

On  appeal  from  a  decree  pro  con- 
fesso the  only  question  for  the 
Supreme  Court  is  whether  the  al- 
legations of  the  bill  support  the 
decree.  Masterson  v.  Howard,  85 
U.  S.  (18  Wall.)  99,  21  L.  ed.  64 
(1873). 

23.  Alabama.  Code,  Sec.  3166; 
Madden  v.  Floyd,  69  Ala.  221 
(1881). 

Florida.  Lybass  v.  Town  of 
Fort  Myers,  56  Fla.  817  (1908). 

Illinois.  James  H.  Eice  Co.  v. 
McJohn,   244  111.   264    (1910). 

Massachusetts.  White  v.  White, 
169  Mass.  52  (1897). 

Michigan.  McMahon  v.  Eooney, 
93   Mich.   390    (1892). 

United  States.  Ohio  Central  E. 
Co.  V.  Central  T.  Co.,  133  U.  S. 
83,  33  L.  ed.  561  (1890). 


The  defendant  on  appeal  will 
not  be  heard  to  maintain  that  the 
proofs  were  insufficient  tor  the  al- 
legations. Eoby  V.  Chicago  Title, 
etc.,  Co.,  194  111.  228  (1902); 
Thompson  v.  Wooster,  114  U.  S. 
104,  29  L.  ed.  105   (1885). 

A  defendant  against  whom  pro 
confesso  has  been  taken  still  re- 
mains a  party  to  the  record.  Mo- 
bile S.  Bank  v.  McDonnell,  87  Ala. 
736,  750   (1888). 

24.  Alabama,  Code,  Sec.  3166; 
Clayton  v.  Chichester,  1  Craw,  and 
Dix.  ab.  Cases,  64. 

But  except  by  favor  of  the  court 
he  cannot  offer  affirmative  evi- 
dence. Bauerle  v.  Long,  165  111. 
340  (1897);  White  v.  White,  169 
Mass.  52  (1897);  Hazard  v.  Du- 
rant,  12  E.  I.  99  (1878);  Thomp- 
son V.  Wooster,  114  U.  S.  104,  29 
L.  ed.   105    (1885). 

25.  Blanchard  v.  Cooke,  144 
Mass.  207  (1886);  Southern  PaC. 
E.  Co.  V.  Temple,  59  Fed.  17 
(1893). 

26.  Florida.  Lybass  v.  Town 
Fort  Myers,  56  Fla.  817  (1908). 

Maryland.  Central  Bank  v. 
Copeland,  18  Md.  305  (1862). 


TAKING  BILL  PRO  CONFESSO 


369 


be  entitled,  where  he  has  appeared,  to  notice  of  those  pro- 
ceedings above  mentioned  in  which  he  is  permitted  to 
take  part;  but  the  authorities  generally  hold  to  the  con- 
trary.^^  The  bill  cannot  be  amended  after  being  taken 
pro  confesso,  without  notice  to  the  defendant.^^ 


Massachusetts.  Blanchard  v. 
Cooke,  144  Mass.  207   (1886). 

Michigan.  Curamings  v.  Corey, 
58  Mich.  494   (1885). 

Mississippi.  Austin  v.  Barber, 
88  Miss.  553  (1906). 

Tennessee.  Dunscomb  v.  Wal- 
lace, 105  Tenn.  385   (1900). 

United  States.  Ohio  Cfentral  E. 
Co.  V.  Central  Trust  Co.,  133  U.  S. 
83,  33  L.  ed.  561  (1890);  O'Hara 
V.  McConnell,  93  U.  S.  150,  23  L. 
ed.  840  (1876). 

27.  The  following  cases  held 
that  notice  need  not  be  given: 

Florida.  Price  v.  Boden,  39  Fla. 
218   (1857). 

Maine.  Glover  v.  Jones,  95  Me. 
303   (1901). 

Mississippi.  Chapman  v.  Gib- 
bons, 44  Miss.   113    (1870). 

New  Jersey.  Oakley  v.  O'Neill, 
2  N.  J.  E.  287  (1840);  Eq.  Kules 
22,  26. 

United  States.  Provident  L.  & 
T.  Co.  V.  Camden,  etc.,  E.  Co.,  177 
Fed.  854,  101  C.  C.  A.  68  (1910); 
Austin  V.  Eiley,  55  Fed.  33  (1893), 

Contra  are  the  following  cases 
holding  that,  in  some  circumstances 
at  least,  notice  should  be  given. 
Wampler  v.  Wolfinger,  13  Md.  337 
(1859);  Southern,  etc.,  E.  Co.  v. 
Temple,  59  Fed.   17   (1893). 

In  general,  no  notice  is  necessary 
where  a  defendant  has  been  de- 
faulted for  failure  to  appear. 
Moore  v.  Titman,  33  111.  358 
(1864);  Harrison  v.  Morton,  87  Md. 
671  (1898);  Provident  L.  &  T.  Co. 
Whitehouse  E.  P.  Vol.  I — 24 


V.  Camden,  etc.,  E.  Co.,  177  Fed. 
854,  101  C.  C.  A.  68   (1910) 

In  Alabama,  by  Eq.  Eule  61, 
no  copy  of  interrogatories  need  be 
given  a  defendant  against  whom 
pro  confesso  is  in  force,  nor  need 
he  be  given  notice  of  the  taking  of 
testimony.  By  Eule  91  he  need  not 
be  given  notice  of  the  taking  of 
an  account.  But  by  Eq.  Eule  40 
notice  of  motions  to  amend  is  to 
be  given  him  by  entry  on  the  order 
book  of  the  register;  and  by  Eule 
44  notice  of  the  allowance  of  an 
amendment  is  to  be  given  him  in 
the  same  way.  McClenny  v.  Ward, 
80  Ala.  243  (1885);  Holly  v.  Bass, 
63  Ala.  387  (1879).  Apparently 
also  he  is  entitled  to  notice  of 
references.  Code,  Sec.  3158;  Mo- 
bile S.  Bank  v.  McDonnell,  87  Ala. 
7362    (1888). 

A  default  for  failure  to  answer 
a  cross  bill  should  not  be  taken 
without  notice  to  the  defendant 
therein.  Michael  v.  Mace,  137  111. 
485    (1891). 

No  notice  need  be  given  where 
the  defendant  has  specially  ap- 
peared. Hews  v.  Hews,  145  Mich. 
247    (1906),    divorce    case. 

28.  Alabama.  Eq.  Eules  40,  44; 
McClenny  v.  Ward,  80  Ala.  243 
(1885);  ilolly  v.  Bass,  63  Ala.  387 
(1879). 

Florida.  Howard  v.  Pensaeola, 
etc.,  E.  Co.,  24  Fla.  560  (1888), 
semMe. 

Maine.  Fogg  v.  Merrill,  74  Me. 
523    (1883). 


370 


EQUITY  PRACTICE 


§  194.  Opening  the  decree — In  general.  By  the  express 
provisions  of  statutes  or  chancery  rules  of  many  of  the 
jurisdictions,^®   interlocutory   decrees   that   the   bill   be 


Michigan.  Harris  v.  Deitrich, 
29  Mich.  366   (1874). 

United  States.  Blythe  v.  Hinck- 
ley, 84  Fed.  228   (1897). 

In  Sheffield  Furnace  Co.  v.  With- 
erow,  149  U.  S.  574,  37  L.  ed.  854 
(1893),  the  plaintiff  was  allowed 
to  withdraw  an  amendment  filed 
without  leave  of  court,  and  with- 
out giving  defendant  a  copy,  or 
paying  him  costs,  and  plaintiff's 
right  to  a  decree  pro  confesso  was 
held  not  to  be  affected,  because  he 
had  never  been  in  a  position  to 
claim  any  benefit  from  the  amend- 
ment. In  Ruppe  V.  Glos,  251  111. 
80  (1911),  the  filing  of  an  amend- 
ment was  held  to  waive  an  order 
pro  confesso. 

An  amendment  affecting  only  de- 
fendants who  have  appeared  and 
answered  does  not  necessitate  the 
giving  of  notice  to  defendants 
against  whom  the  bill  is  pro  con- 
fesso. Reno  V.  Harper,  23  Miss. 
154   (1851). 

29.  Alabama.  Decrees  pro  con- 
fesso against  defendants  served 
either  with  summons  or  by  publi- 
cation may  be  set  aside,  on  terms, 
upon  their  filing  proper  pleadings, 
before  the  testimony  is  published, 
and  even  (in  the  discretion  of  the 
chancellor)  after  such  publication. 
Code,  Sees.  3167-8-9.  A  decree  pro 
confesso  against  a  sane,  adult  de- 
fendant not  personally  served  is 
not  absolute  until  twelve  months 
from  rendition,  unless  served  on  the 
defendant  within  six  months  after 
its  rendition,  when  it  becomes  ab- 
solute six  months  after  such  ser- 
vice; and  until  it  becomes  absolute 


it  may  be  opened  by  petition,  of 
which  notice  should  be  given  to 
those  interested.  Code,  Sees.  3170, 
3171,  3173.  Infants  and  persona 
of  unsound  mind  have  until  twelve 
months  from  the  termination  of 
their  disabilities  to  show  cause 
against   such    decrees.     Code,   Sec. 

3174.  The  rights  of  deceased  par- 
ties as  above  extend  to  their  per- 
sonal  representatives.      Code,   Sec. 

3175.  See  as  to  the  requirements 
of  and  procedure  upon  the  petition. 
Smothers  v.  Meridian,  etc.,  Fac, 
137  Ala.  166  (1902)  j  Buford  v. 
Ward,  108  Ala.  307  (1895);  Leh- 
man V.  Collins,  69  Ala.  127  (1881); 
Hinton  v.  Citizens,  etc.,  Co.,  63 
Ala.  488  (1879) ;  Tabor  v.  Loranee, 
53    Ala.    543    (1875). 

Florida.  Decree  is  absolute  un- 
less set  aside  on  motion  filed 
within  twenty  days  after  entry 
of  final  decree.  G.  S.  Sec.  1898.  On 
setting  aside  pro  confesso,  court 
may  require  defendant  to  pay  costs 
and  file  answer.     Eq.  Rule  45. 

Illinois.  Petition  may  be 
brought  within  one  year  after 
notice  in  writing  of  final  decree, 
or  within  three  years  after  decree, 
when  no  such  notice  given,  when 
the  pro  confesso  is  against  a  per- 
son not  served  with  process.  J. 
&  A.  1(899;  Hurd's  St.  Ch.  22,  Sec. 
19. 

Maine.  Petition  may  be  brought 
within  ten  days  after  entry  of 
order  pro  confesso.  R.  S.  Ch.  79, 
Sees.  16,  17.  Review  of  any  decree 
against  an  absent  defendant  not 
served  and  who  has  not  appeared 
may  be  had  by  petition  as  of  right 


TAKING  BILL  PRO  CONFESSO 


371 


taken  pro  confesso,  and  final  decrees  based  on  the  allega- 
tions of  the  bill  taken  as  true  against  defendants  not  per- 
sonally served  with  process,  may  be  opened  on  petition 
within  a  certain  time  after  the  decree  to  be  opened  was 
rendered.     These  statutes  and  rules  somewhat  modify 


within  one  year  after  final  decree. 
R.  S.  Ch.  79,  Sec.  38. 

Michigan.  Petition  may  be 
brought  by  a  defendant  not  per- 
sonally served  within  one  year 
after  notice  of  final  decree  or 
within  seven  years  after  decree, 
when  no  such  notice  given.  How. 
Ann.  St.  (2d  ed.)  §§  12,014-12,016; 
C.  L.  Ch.  29,  Sees.  496,  497,  498. 
Any  decree  pro  confesso  may  be  set 
aside  for  cause,  where  defendant 
offers  sworn  answer  showing  de- 
fence on  the  merits,  but  where  per- 
sonal service  has  been  had,  ap- 
plication to  set  aside  pro  confesso 
must  be  within  six  months  after 
default  and  defendant  must  con- 
form to  conditions  respecting  costs. 
Eq.  Rule  7.  Except  as  above,  a 
decree  pro  confesso  cannot  be  set 
aside.  St.  Louis,  etc.,  Co.  v.  Dono- 
van, 155  Mich.  311  (1909). 

Mississippi.  Decrees  against 
non-resident,  absent  or  unknown 
defendants  who  have  been  served 
only  by  publication  are  conclusive 
unless  a  rehearing  is  asked  for 
within  two  years  after  rendition, 
or  within  six  months  after  service 
of  a  copy  of  the  decree.  Code,  Sec. 
570. 

New  Jersey.  Within  six  months 
from  written  notice  of  decree,  or 
within  three  years  from  decree 
when  no  such  notice  is  given,  an 
absent  defendant  against  whom  a 
decree  pro  confesso  has  been  made 
may  petition  to  have  the  decree 
opened,  which  may  be  granted  on 


his  answering  the  bill  and  paying 
costs,  or  may  bring  his  bill  for  an 
accounting  and  refund  of  what  the 
original  plaintiff  improperly  took 
by  the  decree.  Comp.  St.  "Chan- 
cery" Sec.  18.  To  prevent  fraud 
or  mistake,  the  chancellor  may  at 
any  time  upon  notice  and  for  cause 
shown  stay  proceedings  and  open 
a  decree  pro  confesso.  Same,  Sec. 
23.  See  discussion  of  New  Jersey 
practice  in  Boyer  v.  Boyer,  77  N. 
J.  Eq.  144  (1910). 

Where  after  a  pro  confesso  the 
defendant  has  been  given  leave  to 
answer  he  may  not  demur.  Hand 
V.  Hand,  60  N.  J.  E.  518  (1900). 

Pennsylvania.  Decrees  pro  con- 
fesso may  be  opened  within  four- 
teen days  after  service  of  notice 
of  decree,  on  cause  shown,  if  de- 
fendant undertakes  to  file  answer 
and  submit  to  terms.     Eq.  Rule  30. 

Rhode  Island.  Motion  may  be 
made  within  five  days  after  entry 
of  decree  pro  confesso,  and  for 
cause  shown  the  decree  will  be  set 
aside  and  further  time  to  plead 
may  be  granted  on  terms.  G.  L. 
Ch.  289,  Sec.  10.  See  Masterson  v, 
Whipple,  27  R.  I.   192    (1905). 

Tennessee.  At  any  time  before 
final  decree,  a  defendant  who  has 
been  served  may  for  cause  have 
the  decree  pro  confesso,  set  aside 
on  filing  answer  and  paying  costs. 
Non-residents  and  unknown  de- 
fendants not  served  with  process 
may  appear  and  defend  before  final 
decree    as    of    course.     Other   per- 


372 


EQUITY  PRACTICE 


the  principles  of  general  cliancerj"  practice,^*^  by  which 
any  interlocutoiy  decrees  pro  confesso,  or  final  decrees  on 
the  bill  taken  pro  confesso,  may  be  opened  for  cause 
shown,  in  the  discretion  of  the  court, — the  former  being 
opened  much  more  readily  than  the  latter. 

§  195.  Opening  interlocutory  decree  pro  confesso. 
Under  the  rules  and  statutes  of  some  of  the  jurisdictions, 
an  interlocutory  decree  pro  confesso  will  be  opened  as  a 
matter  of  course  within  a  certain  time  after  it  is  ren- 
dered, particularly  where  the  defendant  was  not  person- 
ally served  with  process.''^  Otherwise  the  decree  is 
opened  only  for  cause  shown,  and  the  decision  lies  within 


sons  not  personally  served  with 
process  shall  show  merits  in  order 
to  obtain  the  setting  aside  of  a 
pro  confesso.  Where  no  attach- 
ment is  made,  the  decree  pro  con- 
fesso does  not  become  absolute 
against  a  defendant  not  person- 
ally served  with  process,  for  three 
years  from  decree,  unless  a  copy 
of  the  decree  is  served  on  him, 
when  it  becomes  absolute  in  six 
months  after  service.  The  rights 
of  deceased  defendants  not  person- 
ally served  with  process  survive  to 
their  personal  representatives. 
Code,  Sec.  6185-6191.  As  to  the 
Tennessee  practice,  see  Brown  v. 
Brown,    S6    Tenn.    277    (1887). 

United  States.  The  court  may 
proceed  to  a  final  decree  after 
thirty  days  after  entry  of  pro  con- 
fesso, which  decree  is  absolute  un- 
less at  the  same  term  the  court 
upon  cause  shown  by  motion  or  af- 
fidavit set  aside  the  same  or  en- 
large the  time  for  filing  answer. 
Defendant  must  pay  costs,  under- 
take to  file  his  answer,  and  to  sub- 
mit to  such  other  terms  as  the 
court  directs.     Eq.  Eule  17. 

30.  The    general    chancery   prac- 


tice is  thus  described  in  Dan.  Ch. 
Pr.,  (6th  Am.  ed.),  pp.  524,  525: 
"Whenever  an  order  of  this  na- 
ture (taking  the  bill  pro  confesso) 
has  been  made  and  the  defendant 
comes  in  on  any  reasonable  ground 
of  indulgence  and  pays  the  costs, 
the  court  will  attend  to  his  appli- 
cation unless  the  delay  has  been 
extravagantly  long.  It  is  not, 
however,  a  matter  of  course  to  dis- 
charge the  order  taking  the  bill 
pro  confesso;  .  .  .  and  the 
court  before  doing  so  will  require 
to  see  the  answer  prepared  to  be 
put  in,  in  order  that  it  may  form 
a  judgment  as  to  its  propriety  and 
will  not  put  the  plaintiff  to  the 
peril  of  having  just  such  an  an- 
swer as  the  defendant  thinks  best 
to  give."  (Citing,  Williams  v. 
Thompson,  2  Bro.  C.  C.  280,  1  Cox 
413;  Hearne  v.  Ogilvie,  11  Ves.  77). 

The  code  provisions  merely  im- 
pose on  the  court  as  a  duty  what 
would  otherwise  be  in  the  court 's 
discretion.  Pittman  v.  ^McClellan, 
55  Miss.  299  (1877). 

31.  See  the  rules,  statutes  and 
cases  in  note  29,  ante. 


TAKING  BILL  PRO  CONFESSO 


373 


the  discretion  of  the  court.^^  The  decree  will  however 
be  vacated  on  any  reasonable  ground  of  indulgence,  and 
the  defendant  will  be  jDermitted  to  appear  and  answer, 
although  usually  only  on  the  payment  of  costs.'^^  But 
the  mere  putting  in  of  an  answer  will  not  be  sufficient 
ground  for  moving  to  set  aside  an  order  that  the  bill  be 
taken  pro  confesso.^^ 

§  196.  Opening  final  decree  on  the  bill  taken  pro  con- 
fesso.     Except  under  the  provisions  of  statutes  or  rules 


32.  Culver  v.  Brinckerhof,  180 
111.  552  (1899);  Belt  v.  Bowie,  65 
Md.  350  (1886);  White  v.  White, 
169  Mass.  52  (1897);  Kelty  v. 
High,  29  W.  Va.  381  (1887);  Dean 
V.  Mason,  20  How.  198,  15  L.  ed. 
876    (1857). 

33.  A  typical  case  where  the  de- 
cree was  opened  was  Miller  v. 
Wright,  25  N.  J.  E.  3i0  (1874). 
The  defendant  in  that  case  had 
placed  the  papers  with  a  solicitor,' 
who  had  taken  no  action  further 
than  to  call  on  plaintiff's  solicitor 
and  learn  that  an  extension  would 
be   granted. 

Other  cases  where  pro  confesso 
orders  have  been  vacated  are 
these: 

Florida.  Gibbons  v.  Pickett,  31 
Fla.   147    (1893). 

Illinois.  Yarnell  v.  Brown,  170 
111.  362,  reversing  65  111.  App.  83 
(1898). 

Michigan.  Brewer  v.  Dodge,  28 
Mich.  358   (1873). 

Mississippi.  Field  v.  Junkins, 
56  So.  172  (Miss.  1911);  Yost  v. 
Alderson,  58  Miss.  40   (1880). 

New  Jersey.  Williamson  v. 
Sykes,  13  N.  J.  E.  182  (1860). 

Vermont.  Hall  v.  Lamb,  28  Vt. 
85   (1855). 

United  States.  United  States  v. 
Whitmire,  188  Fed.  422,  110  C.  C. 
A.  222  '(1911);   Benjamin  Schwarz 


&  Sons  V.  Kennedy,  156  Fed.  316 
(1907);  McFarland  v.  State  Bank, 
129   Fed.    244    (1904). 

In  many  cases,  on  appeal  from 
final  decree,  the  original  pro  con- 
fesso order  is  vacated.  See  note 
36,  post,  p.  375. 

34.  Williams  v.  Thompson,  2 
Bro.  C.  C.  280,  1  Cox  413;  James 
V.  Cresswicke,  7  Sim.  143;  Hunter 
V.  Bobbins,  21  Ala.  585   (1852). 

Other  cases  where  the  court  has 
declined  to  vacate  a  pro  confesso 
order  are  these: 

Florida.  Keil  v.  West,  21  Fla. 
508    (1885). 

Illinois.  Culver  v.  Brinckerhof, 
180  111.  548  (1899);  Terry  v.  Eu- 
reka College,   70  111.  236    nS73). 

Michigan.  Low  v.  Mills,  61 
Mich.   35    (1886). 

New  Jersey.  Piatt  v.  Griffith, 
27  N.  J.  E.  207   (1876). 

Rhode  Island.  Hazard  v.  Du- 
rant,  11  R.  I.  195  (1877). 

Tennessee.  Bashaw  v.  Temple, 
115  Tenn.  596  (1906);  Totten  v. 
Nance,  3  Tenn.  Ch.  264   (1877). 

United  States.  McGregor  v. 
Vermont  Loan  &  Trust  Co.,  104 
Fed.    709     (1900). 

In  many  cases,  on  appeal  from 
final  decree,  the  court  refuses  to 
vacate  the  original  pro  confesso 
order.  See  note  37  et  seq.,  post, 
pp.  375  et  seq. 


374 


EQUITY  PRACTICE 


relating  to  cases  where  the  defendant  has  not  been  per- 
sonally served  with  process,  final  decrees  on  bills  taken 
pro  confesso  will  be  reopened  only  for  much  weiglitier 
reasons  than  the  preliminary  orders.''""    The  general  rule 


35.  The  most  extended  discus- 
sion of  this  subject  contained  in 
any  one  case  is  found  in  Robert- 
son V.  Miller,  3  N.  J.  E.  451,  454 
(1836),  which  is  frequently  cited. 
The  court  there  said:  "There  is 
a  clear  distinction  between  a  de- 
cree nisi  for  default  according  to 
the  English  practice,  and  a  final 
decree  after  an  order  that  the  bill 
be  taken  pro  confesso  and  refer- 
ence to  a  master  to  take  an  ac- 
count according  to  our  practice. 
Applications  to  open  the  one  are 
treated  with  indulgence,  attempts 
to  set  the  other  aside  are  more 
strictly  scrutinized.  .  .  .  The 
whole  current  of  authorities  goes 
to  show  that  there  is  a  difference 
between  decrees  by  default,  orders 
that  the  bill  be  taken  pro  confesso, 
and  actual  decrees  pro  confesso. 
The  last  are  considered  when  com- 
pared with  the  others  as  sacred 
and  to  be  disturbed  only  for 
weighty  reasons."  Citing  Knight 
V.  Young,  2  V.  &  B.  (Eng.  Ch.) 
184,  and  Lansing  v.  McPherson,  3 
Johns.  Ch.   (N.  Y.)   424   (1818). 

As  to  the  difference  between  the 
preliminary  order  pro  confesso  and 
the  final  decree  this  may  be  taken 
as  a  somewhat  strong  but  correct 
statement  of  the  rule,  but  the  ref- 
erence to  decrees  by  default  here 
is  liable  to  be  misleading  and  con- 
fusing. The  only  decrees  nisi  for 
default  employed  in  general 
chancery  practice  were  defaults  on 
the  failure  of  the  defendant  to  ap- 
pear at  the  hearing.  These  in  the 
early    practice    were    decrees    nisi 


giving  the  defendant  a  day  to 
show  cause  against  them,  but  now 
they  are  absolute  in  the  first  in- 
stance. (Dan.  Ch.  Pr.  (6th  Am. 
ed.)  p.  978.)  They  are  not,  as 
might  be  inferred,  a  substitute  in 
the  English  practice  for  the  decrees 
pro  confesso.  In  the  early  English 
practice,  as  we  have  seen,  there 
was  no  such  thing  as  taking  the 
bill  by  confession  or  default,  but 
capias  and  attachment  were  em- 
ployed to  enforce  an  appearance, 
and  failing  that,  the  plaintiff  was 
compelled  to  prove  his  case 
throughout  ex  parte.  Where  the 
practice  of  taking  the  bill  pro 
confesso  was  employed,  it  extended 
only  to  cases  of  want  of  appear- 
ance or  want  of  answer,  while  the 
term  default  was  applied  in  the 
case  of  failure  to  appear  at  the 
hearing,  and  this  distinction  and 
practice  were  not  peculiar  to 
English  practice  but  constitute  the 
general  chancery  practice  in  En- 
gland and  America  today.  It  is 
true  that  the  decree  nisi  in  the 
early  English  practice  would  be 
vacated  more  readily  than  a  final 
decree  pro  confesso  (see  Knight  v. 
Young,  2  V.  &  B.  184),  for  want 
of  appearance  or  answer  or  a  final 
decree  absolute  for  default  at  hear- 
ing, but  there  is  no  reason  on  prin- 
ciple why  there  should  be  such 
difference  between  the  latter  two 
forms  of  decree.  Many  a  final 
decree  pro  confesso  is  made  on  the 
simple  case  made  by  the  bill  with- 
out further  proofs,  whereas  a  de- 
fault   decree    can    only    be    made 


TAKING  BILL  PRO  CONFESSO 


375 


is,  that  siicli  a  decree  may  be  opened  to  enable  a  defend- 
ant to  make  a  meritorious  defence  which  has  not  been 
heard  through  surprise,  accident  or  mistake.^*^  But  such 
a  decree  will  not  be  reopened  where  the  only  allegation 
of  surprise  is  that  the  defendant  was  unacquainted  with 
the  method  of  procedure  of  the  court  and  somehow  got  a 
wrong  impression  as  to  when  his  answer  was  to  be 
filed;  ^■^  or  when  four  years  have  expired  after  decree 
and  the  only  reason  alleged  for  the  delay  is  pecuniary'' 
inability  to  institute  proceedings;^^  or  where  the  prin- 
cipal witness  in  support  of  the  bill  has  died  since  the 
decree;^''  or  in  general  when  the  circumstances  do  not 
seem  to  the  court  to  make  out  a  case  where  the  defend- 
ant has  lost  the  benefit  of  a  meritorious  defence  through 
no  fault  of  his  own.^^ 


upon  the  pleadings  and  evidence 
on  default  at  the  hearing,  and  the 
courts  should  be  as  loth  to  disturb 
the  default  decree  thus  made  abso- 
lute as  the  final  decree  pro  confesso. 
In  Knight  v.  Young,  2  V.  &  B. 
184,  the  court  declared  that  it  was 
more  loth  to  disturb  a  final  decree 
pro  confesso  than  a  decree  nisi  for 
default  at  hearing  (under  the  old 
practice),  but  added,  "there  are 
very  few  instances  of  permitting 
a  defendant  to  open  a  decree  made 
upon  his  default  at  the  hearing." 
See  Sec.  406,  post,  p.  647. 

36.  Alabama.  Keenan  v.  Strange, 
12  Ala.  290   (1847). 

Florida.  Turner  v.  Jones,  64  So. 
502  (1913);  International,  etc.,  Co., 
V.  Vause,  55  Fla.  641   (1908). 

MicMgan.  Benedict  v.  Auditor 
General,  104  Mich.  269  (1895); 
Harris  v.  Deitrich,  29  Mich.  366 
(1874). 

Mississippi.  Williams  v.  Dun- 
can, 44  Miss.  375  (1870). 

New   Jersey.     Mutual   Life   Ins. 


Co.  V.  Sturges,  32  N.  J.  E.  678 
(1880);  Vanderventer  v.  Stiger,  25 
N.  J.  E.  224  (1874);  Miller  v. 
Eushforth,  4  N.  J.  E.  174  (1842), 
after  three  years. 

New  York.  Millspaugh  v.  Mc- 
Bride,  7  Paige  509  (1839). 

Tennessee.  Brown  v.  Brown,  86 
Tenn.  277   (1887). 

West  Virginia.  Kelty  v.  High, 
29  W.  Va.  381   (1887). 

See  also  Ch.  XXVIII,  "Ap- 
peals," Sec.  506,  post,  p.  839. 

37.  Carpenter  v.  Muchmore,  15 
N.  .J.  E.   123   (1862). 

38.  Eobertson  v.  Miller,  3  N.  J. 
E.  451    (1836). 

39.  Wooster  v.  Woodhull,  1 
Johns.  Ch.  (N.  Y.)  539  (1815). 

40.  Florida.  King  v.  Bell,  54 
Fla.  568  (1907);  Friedman  v. 
Eehm,  43  Fla.  330  (1901);  Strib- 
ling  V.  Hart,  20  Fla.  235  (1883). 

Illinois.  Gillett  v.  Chicago,  etc., 
Co.,  230  111.  373  (1907);  Powell  v. 
Clement,   78  111.  20   (1875). 

Michigan.      St.    Louis,    etc.,    Co. 


376 


EQUITY  PRACTICE 


§  197.  Procedure  in  opening  the  decree.  The  person 
desiring-  to  open  the  decree  should  proceed  by  petition 
where  he  is  acting  under  a  rule  or  statute  permitting  the 
opening  of  the  decree  by  petition,  and  in  general  chan- 
cery practice  where  he  wishes  to  open  a  decree  that  has 
not  become  final.^^  After  the  decree  has  become  final  he 
may  still  usually  proceed  by  petition,^-  although  he  may 
also  bring  a  bill  in  the  nature  of  review,^-^  and  must  do 
so  where  he  alleges  error  of  law  as  the  sole  ground  of 
relief.^^    The  i>roceedings  on  such  bills  are  the  same  as  on 


V.  Donovan,  155  Mich.  311  (1909); 
Gould  V.  Castel,  47  Mich.  604 
(1882). 

Mississippi.  Pittman  v.  McClel- 
lan,  55  Miss.  299  (1877). 

New  Jersey.  Embury  v.  Berga- 
mini,  24  X.  J.  E.  227  (1873). 

Virginia.  Nelson's  Admr.  v. 
Kownslaar's  Execr.,  79  Va.  468 
(1884);  Hill  v."  Bowyer,  18  Gratt. 
364   (1868). 

West  Virginia.  Wilson  v.  Ken- 
nedy, 63  W.  Va.  1   (1907). 

United  States.  Schofield  v. 
Horse  Springs  Cattle  Co.,  65  Fed. 
433  (1895);  Stewart  v.  St.  Paul,  63 
Fed.  644  (1894);  Austin  v.  Riley, 
55  Fed.  833   (1893). 

41.  Burge  v.  Burge,  88  111.  164 
(1878);  Colehoun  v.  Bass,  143  111, 
App.  53  (1908);  Low  v.  Mills,  61 
Mich.  35  (1886);  Boyer  v.  Boyer, 
77  N.  J.  E.  144  (1910);  Brown  v. 
Brown,  86  Tenn.  277  (1887);  Scho- 
field V.  Horse  Springs,  etc.,  Co.,  65 
Fed.   433    (1895). 

The  petition  should  be  brought 
before  the  court  below  which  made 
the  decree,  and  not  to  the  court  of 
appeal.  Martin  v.  McReynolds,  6 
Mich.  7   (1858). 

42.  Foxwell  v.  Foxwell,  89  Atl. 
494  (Md.  1914);  First  Nat.  Bank  v, 
Eccleston,  45  Md.  145  (1878).    And 


see  the  rules  and  statutes  cited  in 
note  29,  ante,  p.  370. 

In  the  Federal  courts  a  decree 
l)ro  confesso  cannot  be  opened  after 
the  term  has  expired,  except  by 
bill  of  review  for  new  matter  or 
error  apparent,  or  by  original  bill 
for  fraud.  Bronson  v.  Schulten, 
104  U.  S.  410,  26  L.  ed.  797  (1881), 
here  an  action  at  law;  McGregor  v. 
Vermont  L.  &  T.  Co.,  104  Fed. 
709  (1900);  Stuart  v,  St.  Paul,  63 
Fed.  644  (1894);  Austin  v.  Riley, 
55  Fed.  833  (1893);  Allen  v.  Wil- 
son, 21  Fed.  881  (1884). 

In  Michigan,  after  enrollment  a 
decree  pro  confcsso  can  be  vacated 
only  by  bill  of  review  if  there  was 
an  appearance,  but  by  petition  if 
there  was  none.  Low  v.  Mills,  61 
Mich.  35  (1886);  Maj-nard  v.  Pe- 
rault,  30  Mich.  160  (1874).  But  in 
New  Jersey,  there  seems  to  be  no 
such  distinction.  Boyer  v.  Boyer, 
77  N.  J.  E.  144  (1910).  The  New 
Jersey  practice  is  stated  in  this 
case  to  favor  petition  and  order, 
prior  to  expiration  of  the  time  lim- 
ited for  appeal,  after  that,  or  after 
appeal  affirmed,  to  permit  bill. 

43.  See  Ch.  VL,  Sec.  151,  ante, 
p.  295. 

44.  Thompson  v.  Goulding,  5  All. 
(Mass.)  81  (1862);  Maynard  v.  Pe- 


TAKING  BILL  PRO  CONFESSO  377 

other  bills  in  the  nature  of  review.  If  he  brings  a  peti- 
tion, the  petition  should  state  the  grounds  relied  upon, 
and  should  aver  that  he  has  a  meritorious  defence;  it 
should  be  accompanied  with  an  affidavit,^''  and  usually 
the  petitioner  should  submit  a  copy  of  his  proposed 
answer.  Notice  of  tlie  petition  should  be  given  to  the 
plaintiff  or  his  solicitor.  Upon  the  petition  tlie  court  will 
make  such  order  as  is  permitted  by  the  rules  or  statutes 
and  seems  best  to  the  court;  usually  an  order  either  that 
the  decree  be  opened  and  the  defendant  admitted  to 
plead,  on  terms,  or  on  the  other  hand  an  order  dismiss- 
ing the  petition  and  affirming  the  decree. 

nault,  30  Mich.  160  (1874);  Ratlley  (1872);  Boyer  v.  Boyer,  77  N.  J. 
V.  Shover,  1  Johns.  Ch.  (N.  Y.)  E.  144  (1910);  Austin  v.  Riley,  55 
200  (1814).  Fed.  833  (1893);  Wilson  v.  Waters, 
45.  Counter  affidavits  may  be  47  Tenn.  323  (1869).  Contra,  Men- 
filed  in  opposition  to  the  petition.  dell  v.  Kimball,  85  111.  582  (1877). 
Bowman    v.    Bowman,    64    111.    75 


CHAPTER  X 

INTERLOCUTORY  APPLICATIONS 

§  198.  In  general.  An  interlocutory  application  is  a 
request  made  to  the  court  for  its  interference  in  a  matter 
arising  in  the  progress  of  a  cause,  and  it  may  either 
relate  to  the  process  of  the  court,  or  to  any  other  matter 
upon  which  the  interference  of  the  court  is  required  at 
any  time.  Such  applications  are  made  either  orally  or  in 
writing.  In  the  former  case  they  are  called  motions  and 
in  the  latter  petitions.^  There  does  not  seem  to  be  any 
very  distinct  line  drawn  between  those  cases  where  appli- 
cation should  be  by  motion  and  those  where  it  should  be 
made  Ijy  petition,  but  as  a  general  rule,  when  any  long  or 
intricate  statement  of  facts  is  required,  the  application 
should  be  made  by  petition.^ 

§  199.  Motions — Who  may  make.  A  motion  is  an  oral 
application  to  the  court  by  a  party  to  the  proceedings  or 
his  counsel.  Motions  are  eitlier  of  course  or  special. 
Special  motions  are  either  ex  parte  or  upon  notice.  A 
motion  may  be  made  by  or  on  behalf  of  any  party  to  the 
record  provided  he  is  not  in  contempt."^    A  person  not  a 

1.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  3.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
1,587;  Bergen  v.  Jones,  4  Met.  pp.  505,  1,591,  citing:  Gilb.  For. 
(Mass.)  371  (1842),  semhle,  action  Eom.  102;  Nowles  v.  Youug,  9  Ves. 
at  law.  This  distinction  does  not  172,  173;  Lord  Wenman  v.  Os- 
seem  to  be  observed  in  modern  baldiston,  2  Bro.  P.  C.  (Toml.  ed.) 
practice,   the   terms   "motion"    or  276. 

"motion  in  writing"  being  fre-  It  seems  that  one  in  contempt 
quently  used  where  petition  is  may  move  to  show  that  his  con- 
meant,  tempt     was     erroneously     charged. 

2.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  Kobinson  v.  Owen,  46  N.  H.  38 
1,587,  citing  Jones  v.  Roberts,  12  (1865),  trespass  case.  One  in  con- 
Sim.   189.  tempt  may  be  allowed  as  a  favor 

378 


INTERLOCUTOltY  APPLICATIONS  379 

party  to  the  record  cannot  in  general  be  allowed  to  make 
a  motion  in  a  cause,  except  to  be  made  a  party.^ 

§  200.  Motions  of  course.  A  motion  of  course  is  where 
by  a  standing  rule  or  the  known  custom  of  the  court  the 
desired  order  is  granted  uj^on  request  without  hearing 
both  sides,  and  may  be  made  in  term  or  out.  No  notice 
of  such  a  motion  is  necessary,  as  the  court  will  not  hear 
any  defence  to  it.'^ 

§  201.  Special  motions — Ex  parte.  A  special  motion  is 
one  which  is  not  granted  as  a  matter  of  course,  but  which 
requires  some  ground  to  be  laid  for  it  either  by  previous 
order  or  by  the  pleadings  in  the  cause  or  by  affidavits. 
Special  motions  are  made  either  ex  parte  or  upon  notice 
to  the  opposite  party.  When  they  are  ex  parte,  they  must 
be  supported  by  affidavit.  It  is  impossible  to  lay  down 
any  definite  rule  comprehending  all  cases  of  motions  ex 
parte.  One  class  of  cases,  however,  in  which  such  motions 
are  allowable  is  when  notice  to  the  other  side  would 
defeat  the  object  of  the  motion.  So  where  a  writ  ne  exeat 
is  sought,  it  may  be  by  motion  ex  parte.  Motions  to  make 
absolute,  upon  orders  nisi,  may  also  be  made  ex  parte.^ 

to  be  heard   on  a  motion.     Freese  tered  with  the  clerk  and  the  order 

V.  Swayze,  26  N.  J.  E.  437   (1875).  drawn    and    passed    by    him.      See 

4.  Eoss  V.  Titsworth,  37  N.  J.  E.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
333,  339  (1883);  Linn  v.  Wheeler,  1,592;  Equity  Rules  4  of  Flor- 
21  N.  J.  E.  231   (1870).  Ida,   76   of  Pennsylvania,  5   of  the 

But    a    person    who    is    a    quasi  Federal  courts.     Thus  where  a  bill 

party    to    the    record,    such    as    a  is   to   be    taken   pro   confesso   as   a 

claimant  coming  in  under  a  decree,  matter   of  course,  it  may  be   done 

or   a   purchaser    of   an    estate   sold  by  the  clerk  without  bringing  tho 

by  order  of  the   court,  may  apply  matter    to    the    attention    of    the 

to  the  court  by  motion.     Thornton  court.      The   chancery   rules    some- 

V.    Fairfax,    29    Gratt.    (Va.)    669  times    define    carefully    the    differ- 

(1878).  ence  between  motions  of  course  and 

5.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  motions  of  which  notice  must  be 
1,592,  citing  Eyles  v.  Ward,  Mos.  gi^'en.  See,  e.  g.,  the  Cook  County 
255  (Illinois)      Superior     and     Circuit 

A  "motion  of  course"  does  not      Court  Rules, 
have   to  be   brought   to   the   atten-  6.  Dan.    Ch.   Pr.    (6th   Am.    ed.), 

tion  of  the  court,  but  may  be  en-      pp.  1,592,  1,593.  In  Merchants  Bank 


380  EQUITY  PRACTICE 

§  202.  Special  motions — Upon  notice.  When  the  appli- 
eatiou  to.  be  made  to  the  court  is  not  of  course  or  does  not 
come  within  that  class  of  special  applications  which  the 
court  permits  to  be  made  ex  parte,  a  notice  of  the 
intended  motion  must  be  given*  to  the  adverse  party  or 
his  solicitor."  Such  notice  must  be  properly  entitled  with 
the  name  of  the  cause  and  addressed  to  the  adverse  party 
or  his  solicitor.  It  should  state  clearly  the  terms  of  the 
intended  motion  and  order  to  be  asked  for,  and  the  place, 
day  and  hour  at  which  it  is  to  be  made  and  heard,  which 
is  either  a  rule  day  or  some  special  day  appointed  b}^  the 
court,  and  the  name  of  the  justice  who  is  to  hear  it.  The 
words  "or  so  soon  after  as  counsel  can  be  heard"  are 
usually  added  to  the  notice.  Whenever  a  motion  is  to  be 
made  by  leave  of  court,  it  should  be  so  stated.  The  notice 
should  be  signed  by  the  party  making  the  motion  or  his 
solicitor.^  Service  may  be  made  by  an  officer  or  by  the 
party  or  his  solicitor,  and  proved  in  the  latter  case  by 
affidavit  or  admission. 

§  203.  Hearing  on  motions.  No  person  can  be  heard 
on  a  motion  except  one  of  the  parties  who  gave  the 
notice.^  The  proceedings  at  the  hearing  follow  the  same 
course  as  in  an  original  bill. 

V.    Crysler,   67   Fed.   388,   14   C.   C.  Rules    74    of    Pennsylvania,    9    of 

A.   444    (1895),   after   a   discussion  Tennessee. 

of  the  difference  between  the  dif-  7.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
ferent  kinds  of  motion,  an  order  1,.593.  In  practice,  such  notice  of 
was  vacated  which  allowed  an  at-  an  intended  motion  is  rarely  used, 
torney's  fee  on  motion  ex  parte.  since  whenever  the  application  is 
An  order  obtained  on  motion  may  of  such  importance  as  to  require 
be  discharged  on  motion,  and  an  notice,  it  is  usually  made  in  writ- 
order  obtained  ex  parte  may  be  dis-  ing,  and  called  a  "motion  in  writ- 
charged  ex  parte,  Eslava  v.  Ma-  ing,"  which  is,  strictly  speaking,  a 
zange,  1  Woods  623,  F.  C.  4,527  petition,  and  notice  is  given  by 
(1871).  In  general  chancery  prac-  copy  of  the  petition.  See  Sec. 
tice,  special  motions  ex  parte  may  207,  post,  p.  382. 
be  made  to  the  court  on  a  rule  day  8.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
or  at  any  time  while  sitting,  or  to  pp.   1,594-5. 

any   justice    thereof   in    term   time  9.  Dan.  Ch.  Pr.  6th  Am.  ed.),  p. 

or    vacation.      Dan.    Ch.    Pr.    (6th  1,595. 
Am.    ed.),    p.    1,592.      See    Equity 


INTERLOCUTORY  .APPLICATIONS 


381 


§  204.  Renewal  of  motions.  A  motion  which  has  been 
once  heard  and  decided  cannot  be  renewed  unless  on  a 
new  ground  and  by  leave  of  court. ^"^ 

§205.  Petitions — In  general.  A  petition  is  a  written 
application  to  the  court,  requesting  some  order  or  decree 
on  a  matter  arising  during  the  progress  of  the  cause,^^ 
It  may  seek  an  order  which  is  granted  as  a  matter  of 
course,  or  a  special  order.  It  is  ordinarily  used  for  inter- 
locutory purposes  only,  and  as  a  general  rule  cannot  be 
presented  in  a  cause  until-  the  bill  has  been  filed.^-  There 
are  no  precise  boundaries  between  motions  and  petitions. 
The  latter  merely  amount  to  motions  in  writing.  Most 
things  which  may  be  moved  for  may  also  be  obtained  on 
petition  ^^  whether  as  a  matter  of  course  or  upon  notice.. 


Absence  of  counsel  is  not  equiv- 
alent to  consent  to  granting  the 
motion.  Bound  v.  South  Carolina 
E.  Co.,  46  Fed.  315  (1891).  But  if 
the  adverse  party  is  not  present 
after  due  notice  to  him,  the  court 
may  grant  the  motion.  Equity 
Rules  5  of  Florida,  77  of  Pennsyl- 
vania. 

10.  Hoffman  v.  Livingstone,  1 
Johns.  Ch.  (X.  Y.)  211  (1814)  ;  Rob- 
inson V.  Satterlee,  3  Sawy.  134,  F. 
C.  11,967  (C.  C.  1874).  Not  upon 
merely  cumulative  evidence.  Ray 
V.  Connor,  3  Edw.  Ch.  478  (N.  Y. 
1841). 

11.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
pp.  1603-4.  "A  petition  in  common 
phrase  is  a  request  in  writing,  and 
in  legal  language  describes  an  ap- 
plication to  a  court  in  writing,  in 
contra-distinction  to  a  motion, 
which  may  be  made  viva  voce." 
Per  Folger,  J.,  in  Shaft  v.  Phoenix 
Mut.  L.  Ins.  Co.,  67  N.  Y.  544,  547 
(1876).  See  also  Bergen  v.  Jones, 
4  Met.  371  (1842),  action  at  law. 

The   distinction   between   a  peti- 


tion and  a  bill  is  that  the  former 
is  less  formal  and  the  defendant 
therein  is  to  be  brought  in  by  cita- 
tion, rather  than  by  subpoena. 
Fraser  v.  Fraser,  78  N.  J.  E.  296, 
aff.  77  N.  J.  E.  205  (1910-1911). 

12.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1,603;  Receiver  v.  Bank,  34  N. 
J.  E.  450,  457  (1881);  Codwise  v. 
Gelston,  10  Johns.  (N.  Y.)  521 
(1813). 

13.  Shipbrooke  v.  Hinching- 
brook,  13  Ves.  393;  Dan.  Ch.  Pr. 
(6th  Am.  ed.),  p.  1,604.  A  party 
ought  to  apply  by  petition  when  a 
long  statement  of  facts  is  neces- 
sary to  show  his  title.  Jones  v. 
Roberts,   12  Sim.   189. 

Whether  relief  shall  be  sought 
by  petition  or  bill,  when  it  grows 
out  of  matters  involved  in  a  pend- 
ing suit,  rests  in  the  sound  discre- 
tion of  the  court.  As  a  petition  is 
merely  a  motion  in  writing  which 
the  defendant  is  not  required  to 
answer,  important  questions  should 
be  raised  by  bill,  especially  where 
it    is    desired   to    test    the    defend- 


382 


EQUITY  PRACTICE 


A  petition  may  be  presented  by  any  person  whether  a 
party  to  a  suit  or  not.'^ 

§  206.  Form  of  petition.  The  petition  should  be  prop- 
erly entitled  in  the  cause,  and  should  set  forth  briefly  and 
without  impertinence  the  ground  of  the  application,  and 
conclude  by  praying  the  court  to  make  the  order,  and 
should  be  signed  by  the  party  presenting  the  petition  or 
his  solicitor,  usually  the  latter.^^ 

§  207.  Notice  of  petition.  All  petitions  except  those 
which  are  of  course  require  notice  to  all  parties  in  inter- 
est, either  in  person  or  through  their  solicitor.  Usually 
the  petition  is  filed  with  the  clerk  and  the  notice  sent 
by  the  petitioner's  solicitor  to  the  solicitor  for  the  adverse 


ant 's  conscience.  Curtis  v.  Cur- 
tis, 60  So.  167  (Ala.  1912);  Tuck 
V.  Manning,  150  Mass.  211  (1889), 
persons  claiming  to  be  creditors  of 
a  party  plaintiff  cannot  intervene 
by  petition;  Gibbons  v.  Shepard, 
125  Mass.  541  (18783,  semble  that 
if  objection  is  made  seasonably,  a 
petition  is  an  improper  method  of 
obtaining  the  construction  of  a 
•will;  Hyman  v.  Cameron,  46  Miss. 
725  (1872),  "bill  of  intervention" 
dismissed;  Trotter  v.  Hecksher,  41 
N.  J.  E.  478  (1886),  petition  test- 
ing defendant 's  conscience  dis- 
missed; Eeceiver  v.  Bank,  34  X.  J. 
E.  450  (1881),  petition  by  receiver 
to  recover  moneys  collected  by  a 
creditor  refused;  Esterbrook  v. 
Ahern,  31  N.  J.  E.  3  (1879),  peti- 
tion by  stranger  seeking  moneys 
paid  into  court  refused;  Kelsey  v. 
Hobby,  16  Pet.  269,  277,  10  L.  ed. 
961  (1842);  Trust  Co.  v.  Mobile, 
etc.,  Co.,  53  Fed.  850  (1893),  inter- 
vention even  by  cross  bill  for  pur- 
pose of  obtaining  damages  for 
breach  of  trust  held  improper  in  a 
foreclosure  suit.  In  Thornton  v. 
Fairfax,      29      Gratt.      (Va.)      669 


(1878),  an  assignee  was  allowed  by 
petition  to  obtain  a  report  by  re- 
ceiver of  sale  of  laud  for  liens, 
but  the  court  said  that  if  the  as- 
signor had  disputed  the  assign- 
ment, assignee  would  have  had  to 
bring  bill. 

14.  2  Barb.  Ch.  Pr.  (2d  ed.)  579; 
Livingstone's  Petition,  34  N.  Y. 
555,  569;  Jones  v.  Roberts,  12  Sim. 
189.  In  Barker  v.  Todd,  15  Fed. 
265  (C.  C.  1882),  the  court,  upon 
being  informed  by  the  petition  of 
strangers  to  the  record  that  its  de- 
cree was  obtained  by  collusion  and 
without  any  real  controversy,  an- 
liulled  the  same  and  dismissed  the 
suit.  But  in  Anderson  v.  Jack- 
sonville, etc.,  R.  Co.,  2  Woods  628, 
F.  C.  358  (C.  C.  1873),  the  court 
says  that  in  general  non-parties 
cannot  file  a  petition  for  a  stay  of 
proceedings,  except  they  be  quasi- 
parties. 

15.  Upon  form  of  petitions  see 
Empire  Distilling  Co.  \.  McXulta, 
77  Fed.  700,  23  C.  C.  A.  415  (1897), 
aff.  Dennehy  v.  McXulta,  86  Fed. 
825,  30  C.  C.  A.  422,  41  L.  R.  A. 
609   (1898). 


INTERLOCUTORY  APPLICATIONS  383 

party,  giving  the  title  of  the  cause,  and  saying  "Please 
take  notice  that  I  have  this  day  filed  a  petition  in  the 
above  entitled  cause  of  which  the  following  is  a  true 
copy,"  setting  forth  the  petition  and  signing  the  notice 
as  solicitor  for  petitioner.  Such  notice  is  then  proved, 
if  proof  should  be  required,  by  the  certificate  or  affidavit 
of  the  petitioner's  solicitor,  or  even  by  his  producing  in 
court  a  copy  of  the  petition  with  a  memorandum  of  the 
fact  of  such  notice,  made  at  the  time  it  was  given.^*'  The 
petition  is  then  in  order  for  hearing  at  the  next  rule 
day,  or  it  may  be  set  down  specially  on  some  earlier 
day.  This  is  generally  done  informally  by  agreement 
between  counsel  and  arrangement  with  the  court.  If  an 
agreement  cannot  be  arrived  at,  then  notice  may  be  given 
to  the  solicitor  of  the  adverse  party  as  described  above, 
either  as  a  part  of  the  original  notice  of  filing,  or  as  a 
separate  notice  that  the  petitioner  will  at  a  certain  time 
ask  to  have  the  petition  allowed,  at  which  time  both 
sides  may  be  heard  on  the  petition,  or  if  the  adverse  party 
is  not  ready  he  may  ask  a  postponement.^'^ 

16.  See   Equity   Eule   17   of   Illi-  date   of  hearing.     Equity  Eules   5, 

nois;     Circuit     Court    Rule     19    of  6,  7. 

Michigan;     Equity    Rules     104    of  Application      for      interlocutory 

New  Hampshire;    20,   50a   of   New  orders  at  chambers  or  in  vacation 

Jersey;  75  to  78  of  Pennsylvania.  should  be  by  written  motion  or  pe- 

By    Equity    Rules    3    of   Florida  tition  and  notice  thereof  given  to 

and   4   of   the   Federal    courts,   the  the      opposite      party.        Alabama, 

entry  by  the  clerk  of  an  applica-  Code    Sec.    5726     (application    for 

tion  in  the  order  book  is  sufficient  receiver);    Delaware,   Rule   6;    Illi- 

notice     to    parties     and     solicitors  nois,  J.  &  A.  UK  3031,  6174,  Kurd's 

without  further  service,  unless  per-  St.,   Ch.    37,   Sec.    68,    Ch.    69,   Sec. 

sonal  or  other  service  is  especially  14;  Mississippi,  Code  Sec.  627   (ap- 

required.  plication  for  removal  of  receiver) ; 

In   some   jurisdictions   the   court  Tennessee,   Code   Sees.   6222,   6261; 
sets  the  time  for  hearing  the  peti-  Virginia,  Code  Sec.  3426. 
tion  at  the  time  when   it  is  filed.  17.  The    English    practice,    how- 
Equity    Rule    77    of   Pennsylvania.  ever,  is  very  different.    There  when 

In    Delaware    notice    of    motions  the   petition   is   filed,   the   chancel- 

in  writing  is  served  by  the  Regis-  lor's   secretary   endorses    a    -fiat    or 

ter   at  least   five   days  before  the  answer  as  it  is  called,  in  the  form 


384  EQUITY  PRACTICE 

§  208.  Summons  to  show  cause.  Whenever  an  inter- 
locutory ai)plieation  is  made  by  petition  for  an  injunc- 
tion or  other  important  interlocutory  order  requiring 
immediate  action,  instead  of  notice  of  such  petition 
being  given  by  the  moving  party  to  the  adverse  party 
or  counsel,  and  the  time  for  hearing  thereon  fixed  in  the 
usual  way,  the  court  itself  will  order  a  summons  to  show 
cause  to  issue  to  the  adverse  party.  This  summons  is 
signed  by  the  clerk  and  served  in  hand  by  an  officer,  com- 
manding the  adverse  party  to  appear  at  a  stated  time, 
which  is  usually  at  an  early  day,  to  show  cause  why  the 
injunction  or  order  should  not  be  granted. 

§  209.  Hearing"  of  petitions.  If  the  petitioner  fails  to 
appear  on  the  rule  day  or  special  day  set  for  hearing, 
the  petition  will,  upon  application  of  the  defendant  and 
production  of  an  affidavit  by  him  of  his  having  been 
served  with  the  petition,  be  dismissed  with  costs.  If  on 
the  other  hand,  the  defendant  does  not  appear  upon 
production  of  an  affidavit  of  service  of  the  petition  upon 
the  absent  parties,  the  court  will  proceed  ex  parte  and 
make  such  order  as  seems  just.^^  Adverse  parties  who 
do  appear,  however,  may  file  answers  denying  or  avoid- 
ing the  allegations  of  the  petition,  which  answers  should 
be  verified  by  affidavit. ^'-^  The  course  of  the  procedure  at 
hearings  is  practically  the  same  as  on  motions  and  orig- 
inal bills. 

of   a  memorandum   on   the   margin  by  return  of  the  officer  on  the  orig- 

of   the   petition,   directing  the   ad-  inal   petition.      Dan.    Ch.   Pr.    (6th 

verse  party  to  attefcd  on  the  next  Am.  ed.),  pp.  1605-7. 

petition   day,  or  if  permission  has  18.  Dan.   Ch.   Pr.    (6th   Am.   ed.) 

been  obtained  from  the  chancellor,  p.     1609.       See     Equity     Rules     5 

on   some    earlier   day.     Service    of  of    Florida;    77    of    Pennsylvania, 

the  petition  is  then  made  by  the  Material  facts  alleged  by  petition 

officer's   delivering  to  the  adverse  must  be  proved  by  other  evidence 

party  of  a  true  copy  of  the  petition  than  merely  an  affidavit  where  the 

and  fiat  or  answer  thereon,  and  at  court  is  asked  to  set  aside  a  sale, 

the  same  time  showing  him  the  or-  Coxe  v.   Halstead,  2   X.  J.   E.   311 

iginal,  at  least  two  clear  days  be-  (1840). 

fore  the  day  appointed  in  the  fiat  19.  Street,    Fed.     Eq.     Pr.,    Sec. 

for  the  hearing,  and  proof  is  made  1299.      If   it   presents    an   issue   of 


INTERLOCUTORY  APPLICATIONS 


385 


§  210.  Amendments.  A  petition  may  be  amended  by 
leave  of  court.  Leave  to  amend  is  given  almost  of  course 
on  the  ex  parte  application  of  counsel,  and  is  often  given 
at  the  hearing.-*^  The  amendment  may  state  facts  which 
have  occurred  since  the  presentation  of  the  petition-^ 
and  may  introduce  the  names  of  new  co-petitioners.^^ 
The  amended  petition  does  not  in  general  require  to  be 
reanswered.^^  Interlocutory  orders  made  upon  petition 
may  be  vacated  or  modified  on  motion  merely,  on  the 
ground  of  mistake,  surprise  or  irregularity.^"* 

§  211.  Petitions  of  intervention.  It  is  the  common 
practice  of  the  courts  to  permit  strangers  to  the  litiga- 
tion, claiming  an  interest  in  the  subject  matter,  to  inter- 
vene by  jDefition  on  their  own  behalf  to  assert  their  title.-^ 


law,  it  may  be  demurred  to,  al- 
though the  common  practice  is  to 
move  to  dismiss  it.  Buford  v. 
Ward,  108  Ala.  307  (1895);  Street, 
Fed.  Eq.  Pr.,  Sec.  1299.  By  an- 
swering, all  objections  to  form  and 
mode  of  procedure  are  waived. 
Newman  v.  Moody,  19  Fed.  858 
(1884).  An  answer  to  a  petition 
is  not  a  prerequisite  to  a  hearing 
on  the  petition.  Crane  v.  Brig- 
ham,  11  N.  J.  E.  29   (1855). 

20.  Piatt  V.  Eouth,  3  Beav.  257, 
282;  Maude  v.  Maude,  5  De  G.  & 
S.  418. 

21.  Robinson  v.  Harrison,  1 
Drew.  307.  Facts  which  have  oc- 
curred since  leave  to  amend  was 
given  may  be  introduced  by 
amendment.  Maude  v.  Maude,  5 
De  G.  &  S.  418;  7?!.  re  Westbrook's 
Trusts,  L.  R.  11  Eq.  252;  Doubtfire 
V.  Elworthy,  15  Sim.  77. 

22.  Robinson  v.  Harrison,  1 
Drew.   307. 

23.  Robinson  v.  Harrison,  1 
Drew.  307;  He  Cartwright,  8  W.  R. 
492. 

Whitehouse  E.  P.  Vol.  1—25 


24.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1611;  Fanning  v.  Dunham,  4 
Johns.  Ch.  (N.  Y.)  35  (1819);  Hig- 
bie  V.  Edgerton,  3  Paige  (N.  Y.) 
253  (1832);  Doss  v.  Tyack,  14 
How.  297,  313,  14  L.  ed.  428  (1852). 

25.  Alabama.  Louisville  Mfg. 
Co.  V.  Brown,  101  Ala.  273  (1892); 
Carlin  v.  Jones,  55  Ala.  624  (1876). 

Florida.  Robertson  v.  Baker,  11 
Fla.   192    (1867). 

Illinois.  Gage  v.  Cameron,  212 
111.  146  (1904);  Colehour  v.  Bass, 
143  111.  App.  530    (1908). 

Maryland.  Bradley  v.  Bond,  101 
Md.  691  (1905);  Kunkel  v.  Fitz- 
hugh,  22  Md.  567   (1865). 

New  Jersey.  Cawley  v.  Leonard, 
28  N.  J.  E.  467   (1877). 

Tennessee.  Saylors  v.  Saylors, 
50  Tenn.  525  (1871). 

Virginia.  Rau  v.  Shaver,  102 
A^a.  68  (1903). 

United  States.  Bosworth  v.  Ter- 
minal Co.,  174  U.  S.  182,  187,  43  L. 
ed.  941,  943  (1899),  semble;  Krip- 
pendorf  v.  Hyde,  110  U.  S.  276,  28 
L.  ed.   145    (1883),  semUe;  French 


386 


EQUITY  PRACTICE 


This  they  do  as  a  matter  of  right,  and  do  not  need  to 


V.  Gapen,  105  U.  S.  509,  26  L.  ed. 
951  (1882);  In  re  Davis  Pyrites 
Co.,  67  Fed.  45,  14  C.  C.  A.  300 
(1895),  64  Fed.  664  (1894);  Bill- 
ings V.  Aspen,  etc.,  Co.,  51  Fed. 
338,  2  C.  C.  A.  252,  52  Fed.  250,  3 
C.  0.  A.  69  (1892);  Carter  v.  New 
Orleans,  19  Fed.  659   (659). 

The  test  of  the  right  of  inter- 
vention in  Illinois  is  whether  the 
petitioner  has  rights  of  such  im- 
mediate character  that  he  will  gain 
or  lose  by  the  direct  legal  oper- 
ation of  the  decree.  Wightman  v. 
Evanston  Yaryan  Co.,  217  111.  371 
(1905),  refusing  to  allow  simple 
contract  creditors  to  intervene  in 
a  foreclosure  suit. 

Intervention  was  allowed  by  pe- 
tition filed  over  three  years  subse- 
quent to  final  decree,  in  Cawley 
v.  Leonard,  28  N.  J.  E.  467  (1877). 

Although  a  person  may  petition 
to  be  allowed  to  assert  his  own 
interest  in  the  subject  of  the  con- 
troversy, he  cannot  be  admitted  as 
a  party  defendant  to  the  main  con- 
troversy between  the  original  par- 
ties, over  the  objection  of  the 
plaintiff.  Whitney  v.  Hanover 
National  Bank,  71  Miss.  1009,  23 
L.  R.  A.  531  (1894);  Stretch  v. 
Stretch,  2  Tenn.  Ch.  140  (1874); 
Shields  v.  Barrow,  17  How.  130, 
145,  15  L.  ed.  158,  162  (1854), 
semble;  Gregory  v.  Pike,  67  Fed. 
837,  15  C.   C.  A.   33    (1895). 

One  may  intervene  who  could 
not  have  brought  an  original  bill 
to  assert  the  same  right  against 
the  parties.  Marye  v.  Diggs,  98 
Va.  749,  51  L.  R.  A.  902  (1900); 
People's  Sav.  Inst.  v.  Miles,  76 
Fed.  252,  22  C.  C.  A.  152  (1896), 
replevin      suit;      United      Electric, 


etc.,  Co.  V.  Louisiana  Electric, 
etc.,  Co.,  68  Fed.  673  (1895). 

One  who  intervenes  accepts  the 
jurisdiction  of  the  court  in  the 
premises,  so  that  he  cannot  object 
to  the  order  of  the  court  ordering 
the  removal  to  that  court  of  a  suit 
brought  by  the  intervener  in  a 
state  court.  Rice  v.  Durham  Water 
Co.,  91  Fed.  433    (1899). 

"A  bill  of  intervention  is  un- 
known in  equity  procedure."  Hy- 
man  v.  Cameron,  46  Miss.  725 
(1872).  But  compare  cases  cited 
in  note  13,  ante,  p.  381. 

In  Robertson  v.  Baker,  11  Fla. 
192  (1867)  a  petitioner  was  al- 
lowed to  intervene  and  establish 
his  interest  in  certain  property 
even  after  the  bill  for  the  dissolu- 
tion of  partnership  had  been  re- 
ferred to  a  master,  and  a  receiver 
had  been  appointed.  The  court  said 
that  a  person  interested  in  the 
property  in  controversy  may  inter- 
vene at  any  stage  of  the  proceed- 
ings. But  intervention  must  be  in 
the  court  of  original  jurisdiction, 
not  in  the  appellate  court.  Blatch- 
ford  V.  Newberry,  100  111.  484 
(1881). 

Where  a  receivership  has  been 
established,  and  the  rights  of  all 
persons  interested  have  been  pro- 
tected by  the  pending  proceedings, 
the  court  is  chary  of  allowing  in- 
tervention when  it  will  merely  in- 
crease the  expenses  and  cause  con- 
fusion. Bowker  v.  Haight,  etc., 
Co.,  140  Fed.  794  (1905),  creditor's 
suit;  Sands  v.  E.  S.  Greely  &  Co., 
80  Fed.  195  (1897),  dissolution  of 
corporation. 

In  Florida  v.  Georgia,  17  How. 
478,  15  L.  ed.  181  (1854),  the  dis- 
trict attornev  of  the  United  States 


INTERLOCUTORY  APPLICATIONS 


387 


obtain  leave.-'''  The  typical  example  of  this  sort  of  inter- 
vention is  where  a  fund  is  in  the  hands  of  a  receiver,  or 
in  controversy  between  certain  parties  to  a  proceeding  in 
court,  and  the  petitioner  claims  a  paramount  right  to  the 
whole  or  a  portion  of  this  fund.  Strangers  to  a  proceed- 
ing in  court  who  claim  to  be  interested  as  quasi-'parties, 
or  as  owners  of  similar  rights  to  those  claimed  by  the 
plaintiff  may  also  intervene,  but  must  first  obtain  per- 
mission of  the  court.^^,"^  Examples  of  this  sort  of  interven- 
tion are  where  the  parties  claim  as  beneficiaries  of  a 
trust,  and  a  suit  has  been  brought  by  or  against  the 
trustee  affecting  the  trust  property;  ^^  or  where  bond- 
holders claim  that  the  trustee  under  the  mortgage  does 


was  allowed  to  appear  to  repre- 
sent the  United  States  in  a  boun- 
dary dispute  betwen  two  states,  a 
case  within  the  original  jurisdic- 
tion of  the  Supreme  Court,  his  ap- 
pearance being  distinguished  from 
a  technical  intervention.  But  in 
Potter  V.  Beal,  50  Fed.  860,  2  C.  C. 
A.  60  (1892)  the  district  attorney 
was  not  allowed  to  petition  to  bo 
a  party  defendant  in  order  that 
he  might  get  access  to  certain 
papers  to  be  used  in  a  criminal 
proceeding. 

The  right  of  intervention  will  of 
course  be  refused  where  it  does 
not  appear  that  the  plaintiff  has  a 
real  interest  in  the  property  or 
matter  in  controversy.  Eothwell 
V.  Dewees,  2  Black  613,  17  L.  ed. 
309  (1863);  Forest  Oil  Co.  v.  Craw- 
ford, 101  Fed.  819,  42  C.  C.  A.  .54 
(1900). 

Applications  for  leave  to  inter- 
vene are  of  two  kinds:  In  one  the 
applicant  has  other  means  of  re- 
dress open  to  him,  and  it  is  within 
the  court 's  discretion  to  refuse  to 
incumber  the  main  case  with  col- 
lateral inquiries;  in  the  other,  the 


applicant's  claim  of  right  is  such 
that  he  can  never  obtain  relief  un- 
less it  be  granted  him  on  interven- 
tion in  the  pending  cause,  and  in 
such  case  the  right  to  intervene  is 
absolute,  and  the  rejection  of  the 
petition  is  a  final  adjudication,  and 
therefore        appealable.  United 

States  Trust  Co.  of  New  York  v. 
Chicago  Terminal  Transfer  E*  Co., 
188  Fed.  292,  110  C.  C.  A.  270 
(1911). 

26.  United  States  v.  Phillips,  107 
Fed.  824,  46  C.  C.  A.  660  (1901); 
Minot  V.  Mastin,  95  Fed.  734,  37  C. 
C.  A.  234  (1899);  Continental,  etc., 
Co.  V.  Toledo,  etc.,  E.  Co.,  82  Fed. 
642,  661  (1897).  But  if  the  per- 
son claiming  title  fails  to  inter- 
vene until  the  question  of  his  title 
has  been  decided  against  him,  the 
court  may  refuse  to  allow  him  to 
intervene.  Alexander  v.  Maryland 
T.  Co.,  106  Md.  171   (1907). 

26a.  Freeman  v.  Egnor,  79  S.  E. 
824   (W.  Va.  1913). 

27.  Duke  v.  Williams,  45  Fla. 
248  (1093);  Birdsong  v.  Birdsong, 
39  Tenn.  289  (1859). 


388 


EQUITY  PRACTICE 


not  sufficiently  represent  their  interests;  -^  or  where  a  cor- 
poration is  defendant,  and  a  stockholder  claims  that  the 
directors  refuse  to  properly  attend  to  the  interests  of  the 
corporation  in  defending  the  suit ;  -^  or  where  the  peti- 
tioner has  acquired  the  interest  of  a  party  pendente 
lite;^^  or  where  a  creditors'  bill  has  been  brought,  and 
other  creditors  wish  to  intervene  and  make  themselves 
parties,  thereby  obtaining  the  benefit  of  the  suit,  assum- 
ing at  the  same  time  their  portions  of  the  costs  and 
expenses  of  the  litigation.^  ^ 

§  212.  Form  of  petition  to  intervene.  A  petition  to 
intervene  should  state  the  title  and  nature  of  the  cause 
in  which  it  is  filed,  and  the  grounds  of  intervention,  and 
should  pray  that  the  petitioner  may  be  allowed  to  become 


28.  Williams  v.  Morgan,  111  U. 
S.  699,  28  L.  ed.  565  (1884);  Ex 
parte  Jordan,  94  U.  S.  248,  24  L. 
ed.  123" (1877). 

But  such  intervention  is  not  al- 
lowed unless  it  appears  that  the 
trustee  under  the  mortgage  is  in- 
competent or  for  some  reason  can- 
not faithfully  represent  the  bond- 
holders. Clyde  V.  Kichmond  K.  Co., 
55  Fed.  445  (1893);  Central  Trust 
Co.  V.  Texas,  etc.,  E.  Co.,  24  Fed.  153 
(1885). 

29.  Bronson  v.  K.  Co.,  2  Wall. 
283,  17  L.  ed.  725  (1864).  In 
Forbes  v.  R.  Co.,  2  Woods  323,  F. 
C.  4,926  (C.  C.  1872)  such  inter- 
vention, under  the  circumstances 
of  the  case,  was  not  allowed. 

30.  Purchaser  at  sale.  Mellen 
V.  Moline  Iron  Works,  131  U.  S. 
353,  371,  33  L.  ed.  179,  184  (1889), 
semble;  Union  T.  Co.  v.  Inland 
Navigation,  etc.,  Co.,  130  U.  S. 
565,  32  L.  ed.  1043  (1889),  semble: 
Blossom  V.  Milwaukee  R.  R.  Co., 
1  Wall.  655,  17  L.  ed.  673  (1863). 

Voluntary  assignees.  Tuck  v. 
Manning,    150    Mass.    211     (1887). 


Trustee  (assignee)  in  bank- 
ruptcy. Esterbrook  Co.  v.  Ahem, 
31  N.  J.  E.  3  (1879);  compare 
Davis  V.  Sullivan,  33  N.  J.  E.  569 
(1881),  contra  on  circumstances; 
Eyster  v.  Gaff,  91  U.  S.  521,  529, 
23  L.  ed.  403,  404  (1875),  semble; 
Chester  v.  Association,  4  Fed.  487, 
489  (1880),  contra  on  circum- 
stances. 

Personal  representatives  and 
new  trustees,  by  statute.  Murray 
V.  Dehon,  102  Mass.  11,  13   (1869). 

31.  Libby  v.  Norris,  142  Mass. 
246  (1886);  Myers  v.  Fenn,  5  Wall. 
205,  18  L.  ed.  604  (1866);  George 
V.  St.  Louis  R.  Co.,  44  Fed.  117  (C. 
C.  Mo.  1890).  In  Bowker  v. 
Haight,  etc.,  Co.,  140  Fed.  794  (C. 
C.  N.  Y.  1905)  the  court  said  that 
the  new  creditors  must  employ  the 
same  counsel  as  the  original  cred- 
itor, in  order  to  save  costs.  In- 
tervention will  not  be  allowed 
when  the  real  object  is  to  harass 
the  original  plaintiffs  in  their  suit. 
Toler  V.  East  Tenn.,  etc.,  R.  Co., 
67   Fed.   168    (1894). 


INTERLOCUTORY  APPLICATIONS 


389 


a  party  and  obtain  the  benefit  of  the  decree.'^-  Merely 
filing  the  petition  does  not  make  the  petitioner  a  party 
without  a  formal  order  admitting  him.^^ 


32.  Empire  Distilling  Co.  v.  Mc- 
Nulta,  77  Fed.  700,  23  C.  C.  A.  415, 
aff.  as  Denny  v.  McNulta,  86  Fed. 
825,  30  C.  C.  A.  422,  41  L.  R.  A. 
609   (1897-8). 

33.  Be  Doyle,  14  R.  I.  55  (1882). 
The  lack  of  such  a  formal  order 
IS  no  ground  for  objection  after 
hearing  has  been  had.  People's 
Sav.  Inst.  V.  Miles,  76  Fed.  252,  22 
C.  C.  A.  152  (1896),  semhle,  re- 
plevin suit. 

The  discretion  of  the  chancellor 
.in  refusing  to  allow  intervention 
in  a  suit  which  has  been  long 
pending  will  not  be  reviewed  by 
the  appellate  court.     Gunderson  v. 


Illinois  Trust,  etc.,  Co.,  100  111. 
App.  461,  aff.  199  111.  422  (1902). 
After  the  order  admitting  the 
intervenor,  as  a  plaintiff  he  must 
file  some  writing  in  the  cause  bind- 
ing him  to  the  allegations  and  re- 
sponsibilities of  a  litigant. 
Laughlin  v.  Leigh,  107  111.  App. 
476  (1903).  If  the  order  admits 
him  as  a  defendant,  the  bill 
should  be  amended  to  include  him 
in  its  allegations,  if  its  original  al- 
legations do  not  refer  to  him,  and 
no  relief  was  asked  against  him. 
Cleavenger  v.  Felton,  46  W.  Va. 
249   (1899). 


CHAPTER  XI 

DEMURRERS 

§  213.  Defences  in  general.  Having  thus  followed  the 
plaintiff's  side  of  the  cause  through  the  framing  and 
serving  of  his  bill,  the  manner  in  which  the  defendant 
appears  and  the  effect  of  his  non-appearance,  it  is  now 
in  order  to  consider  the  modes  of  defence  which  the 
defendant  may  employ.  There  are  four  modes  of  defence; 
by  demurrer,  which  admitting  all  the  allegations  of  the 
plaintiff's  bill  submits  that  he  cannot  recover;  by  plea, 
which  sets  up  some  one  fact  in  bar  of  the  suit ;  b}'  answer, 
which  either  denies  the  allegations  of  the  bill  or  con- 
fesses and  avoids  them;  by  disclaimer,  which  denies  all 
interest  on  the  part  of  the  defendant  in  the  subject  mat- 
ter of  the  suit.^  All  these  four  forms  of  defence  may 
be  employed  at  the  same  time.  Tlius  the  defendant  may 
demur  to  one  part,  plead  to  another,  answer  another, 

1.  A  fifth  form  of  defence,  name-  By  the  new  Federal  Equity  Eule 

ly   motions  to   dismiss  the  bill  for  29,    demurrers    are    abolished,    and 

want    of    equity    or    other    causes  every  defence  in  point  of  law  aris- 

equivalent    to    demurrers,    is    used  ing  upon  the  face  of  the  bill  which 

in  New  Jersey  and  Tennessee,  and  might  heretofore  have  been  raised 

formerly  was  used  in  Alabama  but  by    demurrer    must    be    raised    by 

is    now   obsolete   in   that   state   by  motion  or  in  the  answer.     The  ef- 

statute.      New    Jersey,    Eq.    Rule  feet  of  this  rule  is  to  deprive  the 

213,  Shulze  v.  Ziegler,  80  N.  J.  Eq.  decisions    of    Federal    courts    men- 

199      (1912).        Tennessee,      Code,  tioned  in  the  remaining  footnotes. 

Sees.    6135,    6194,    6196;    Alabama,  in    this    chapter,    of    their    direct 

Code,  Sec.  3121,  Sims'  Ala.  Ch.  Pr.  force     as     affecting     Federal     pro- 

Ch.  XV,  Sees.  403  to  410.     Such  a  cedure  but  they  are  still  valuable 

motion   is   only   to   be   used   where  as   authorities   upon   general   chan- 

the     defect     is     plainly     apparent.  eery  practice  and  as  applicable  by 

Morristown  v.  Morris,  etc.,  Co.,  83  analogy    to    the    present    Federal 

Atl.  178   (X.  J.  1912).  procedure. 

390 


DEMURRERS 


391 


and  disclaim  as  to  the  rest,^  but  lie  must  in  some  form 
meet  the  whole  bill.    We  will  first  consider  demurrers. 

§  214.  Demurrers — General  nature.  A  demurrer  ^  is 
a  statement  by  the  defendant  which  in  effect  admitting 
the  allegations  of  the  bill  to  be  true  ^  asserts  that  they  are 


2.  Florida.     Eq.  Rule  49. 
Maryland.      Code,    Art.    16,    Sec. 

146;  Eq.  Rule  17. 
Massachusetts.     Eq.  Rule  9. 
Pennsylvania,     Eq.    Rule    31. 
Ehode  Island.     Eq.  Rule  20. 
Vermont.     Eq.  Rule  13. 

3.  The  word  demurrer  comes 
from  the  latin  demorari,  to  abide, 
and  therefore  he  that  demurreth 
in  law  is  said  to  abide  in  law, 
moratur  or  demoratur  in  lege; 
that  is,  he  will  go  no  further  un- 
til the  court  has  decided  whether 
the  other  party  has  shown  suffi- 
cient matter  in  point  of  law  to 
maintain  his  suit.  Story's  Eq.  PI., 
(10th  ed.),  Sec.  441,  citing  Co. 
Litt.  71&,  Cooper  Eq.  PI.  110,  3 
Black.   Comm.  314. 

Demurrers  are  now  of  much  less 
frequent  occurrence  than  for- 
merly; the  readiness  with  which 
the  court  gives  the  plaintiff  leave 
to  amend  his  bill  renders  it  in- 
expedient to  demur  in  any  case 
where  the  defect  in  the  bill  can 
be  cured  by  amendment.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  542.  The 
courts  do  not  favor  demurrers  for 
matters  of  form,  but  only  on  sub- 
stantial grounds,  such  as  total 
want  of  equity,  where  the  plain- 
tiff cannot  amend,  and  which 
make  a  final  disposition  of  the 
suit.  The  rules  of  many  jurisdic- 
tions provide  that  demurrers  must 
be  accompanied  by  a  certificate  of 
counsel  that  they  are  in  good 
faith  and  not  intended  for  delay. 
See  note  69,  post,  p.  414. 


Where  the  question  raised  by 
the  bill  can  be  finally  determined 
and  disposed  of  by  demurrer,  a 
defendant  by  neglecting  to  demur, 
sometimes  injures,  his  position 
with  respect  to  costs  of  the  suit. 
A  bill  dismissed  at  the  hearing 
may  be  dismissed  without  costs  on 
the  ground  that  it  might  have 
been  demurred  to.  Redrew  v. 
Sparks,  76  N.  J.  E.  133  (1909); 
Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  542, 
citing:  Jones  v.  Davids,  4  Russ. 
277;  Hill  v.  Reardon,  2  S.  &  S. 
431,  439;  Hollingsvvorth  v.  Shake- 
shaft,  14  Beav.  492;  Webb  v.  Eng- 
land, 29  Beav.  44,  7  Jur.  N.  S.  153; 
Godfrey  v.  Tucker,  9  Jur.  N.  S. 
1188,   33   Beav.   280. 

4.  Alabama.  First  Ave.,  etc., 
Co.  V.  Johnston,  171  Ala.  470 
(1911). 

Delaware.  Wilmington  v.  Ad- 
dicks,  7  Del.   Ch.  56   (1893). 

Florida.  Lindsley  v.  Mclver,  51 
Fla.  463    (1906). 

Illinois.  Hoyt  v.  McLaughlin, 
250  111.  442   (1911). 

Maine.  Baker  v.  Atkins,  62  Me. 
205   (1873). 

Maryland.  Ruhe  v.  Ruhe,  113 
Md.    595    (1910). 

Massachusetts.  Marvel  v.  Cobb, 
200   Mass.   293    (1908). 

Michigan.  Michigan  Trust  Co. 
v.  McNamara,  165  Mich.  200 
(1911). 

Mississippi.  Myers  v.  Martinez, 
95  Miss.   104   (1910). 

New   Hampshire.      Forest    Prod- 


392 


EQUITY  PRACTICE 


insufficient  to  entitle  the  plaintiff  to  maintain  his  suit, 
and  demands  the  judgment  of  the  court  as  to  whether 
the  defendant  should  be  obliged  to  answer.'^"  Whenever, 
therefore,  any  ground  of  defence  either  in  substance  or 
form  is  apparent  on  the  face  of  the  bill,  the  defect  may 
be  taken  advantage  of  by  demurrer,"  but  a  demurrer  in 
equity  lies  only  to  a  bill  and  not  to  a  plea  or  answer.' 


ucts  Co.  V.  Publishers,  etc.,  Co., 
75  N.  H.  493   (1910j. 

New  Jersey.  New  Jersey  Title, 
etc.,  Co.  V.  Rector,  76  N.  J.  E. 
587,  reversing  75  N  J.  E.  423 
(1909-1910). 

Pennsylvania.  Appeal  of  Bit- 
ting, 105  Pa.  S.  517  (1884). 

West  Virginia.  Allen  v.  South 
Penn.,  etc.,  Co.,  58  W.  Va.  197 
(1905). 

A  demurrer  admits  the  correct- 
ness of  exhibits  which  are  a  part 
of  the  bill,  especially  as  against 
statements  in  the  bill  inconsistent 
with  the  exhibits. 

Illinois.  Fowler  v.  Fowler,  204 
111.  82   (1903). 

Michigan.  Williams  v.  Olson, 
141   Mich.   580    (1905). 

New  Jersey.  Schuler  v.  South- 
ern, etc.,  Co.,  77  N.  J.  E.  60 
(1910);  Vanderbilt  v.  Mitchell,  72 
N.  J.  E.  910,  927  (1907),  reversing 
71  N.  J.  E.  632    (1906). 

Pennsylvania.  Kaufman  v. 
Kaufman,  222  Pa.  58   (1908). 

West  Virginia.  Wells  v.  Sim- 
mons, 61  W.  Ya.  105   (1906). 

United  States.  Ulman  v. 
Jaeger,  67  Fed.  980  (1895);  Cor- 
nell V.  Green,  43  Fed.  105   (1890). 

And  see  Chapter  V,  Sec.  98, 
ante,  p.  187. 

If  the  bill  alleges  a  fact  and 
alleges  that  the  exhibit  proves 
this  fact,  the  fact  is  taken  as  true 
on    demurrer,   if   the   exhibit    does 


not  contradict  it,  though  the  ex- 
hibit does  not  sustain  the  state- 
ment in  the  bill.  Elswick  v.  Desk- 
ins,  68  W.  Va.  396  (1910). 

A  demurrer  admits  the  truth  of 
the  averments  in  the  bill  only  for 
the  purpose  of  the  particular  con- 
troversy. Cook  V.  Detroit,  etc., 
Co.,  45  Mich.  453   (1881). 

5.  Dan.  Ch.  Pr.  (6th  Am  ed.), 
p  543,  citing  Ld.  Red.  107. 

6.  A  demurrer  for  defects  not 
apparent  on  the  face  of  the  bill  is 
not  allowed.  See  Sec.  233,  post, 
p.  409. 

Xor  is  a  plea  relying  on  defects 
apparent  on  the  face  of  the  bill 
allowed.  Davis  v.  Davis,  57  N.  J. 
E.  252   (1898). 

A  frivolous  demurrer  may  be 
struck  from  the  files.  Moore  v. 
Moore,  74  N.  J.  E.  733  (1910). 

One  defendant  cannot  demur 
for  a  defect  applicable  only  to  an- 
other defendant.  Garner  v.  Lyles, 
35  Miss.  176  (1858).  See  cases 
on  parties  in  note  32,  post,  p.  399. 

A  demurrer  for  mere  imperti- 
nence or  scandal  does  not  lie. 
Simonton  v.  Bacon,  49  Miss.  582 
(1873);  Howe,  etc.,  Co.  v.  Ilagan, 
140  Fed.  182   (1904). 

7.  Alabama.  Freeman  v.  Pullen, 
119  Ala.  235  (1898);  Glasser  v. 
Meyrowitz,    119    Ala.    152    (1898). 

Florida.  Edwards  v.  Drake,  15 
Fla.  666   (1876). 

Illinois.     Dixon  v.  Dixon,  61  111. 


DEMURRERS 


393 


Although  a  demurrer  for  the  purjDOse  of  considering  the 
sufiQciency  of  the  bill  admits  the  truth  of  the  allegations, 
it  admits  only  allegations  of  fact  well  pleaded.  It  does 
not  admit  any  matter  of  law  stated  in  the  bill,  or  any 
inference  of  law  from  facts  therein  alleged,^  for  as  has 


324  (1871);  Stone  v.  Moore,  26  111. 
165   (1861). 

Mississippi.  Winters  v.  Claitor, 
54  Miss.  341   (1877). 

New  Jersey.  Travers  v.  Ross, 
14  N.  J.  E.  254  (1862),  seiyible. 

Pennsylvania.  Huston  v.  Sel- 
lers, 35  Leg.  Int.  262  (Pa.  1878). 

West  Virginia.  Copeland  v.  Mc- 
Cue,  5  W.  Va.  264  (1872). 

United  States.  Banks  v.  Man- 
chester, 128  U.  S.  244,  32  L.  ed. 
425  (1888);  Crouch  v.  Kerr,  38 
Fed.  49    (1889). 

In  a  few  cases  such  a  demurrer 
has  been  allowed,  through  over- 
sight, or  in  the  absence  of  ob- 
jections. Emery  v.  Goodwin,  13 
Me.  14  (1836);  Kidd  v.  New 
Hampshire,  etc.,  Co.,  72  N.  H.  273, 
66  L.  R.  A.  574  (1903);  Witt  v. 
Ellis,  2  Cold.  (Tenn.)  38  (1865); 
United  States  v.  Cole,  130  Fed.  615 
(1904);  McVeagh  v.  Denver 
Waterworks,  85  Fed.  74,  29  C.  C. 
A.  33  (1897);  Grether  v.  Wright, 
75  Fed.  742,  23  C.  C.  A.  498  (1896). 

8.  Florida.  Taylor  v.  Taylor, 
64  Fla.  521  (1912);  H.  W.  Met- 
calfe Co.  V.  Orange  Co.,  56  Fla. 
829   (1908). 

Illinois.  Johnson  v.  Roberts, 
102  111.  655  (1882);  Haugan  v. 
Chicago,  102  N.  E.  185   (111.  1913). 

Maryland.  Gusdorff  v.  Schleis- 
ner,  85  Md.  360   (1897). 

Massachusetts.  Lea  v.  Robeson, 
12    Gray    (Mass.)    280    (1858). 

Mississippi.  Partee  v.  Kort- 
recht,  54  Miss.  66   (1876). 


New  Hampshire.  Pearson  v. 
Tower,  55  X.  H.  36  (1874). 

New  Jersey.  Schuler  v.  South- 
ern Iron,  etc.,  Co.,  77  N.  J.  E.  60 
(1910);  Olden  v.  Hubbard,  34  N. 
J.   E.   85    (1881). 

Pennsylvania.  Kaufman  v. 
Kaufman,   222   Pa.   58    (1908). 

Virginia.  Van  Dyke  v.  Norfolk 
So.  R.  Co.,  112  Va.  835   (1911). 

United  States,  Dillon  v.  Bar- 
nard, 21  Wall.  430,  22  L.  ed.  673 
(1874). 

The  cases  generally  hold  that 
where  an  allegation  is  made  on 
information  and  belief,  a  demur- 
rer admits  the  information  and 
belief,  but  not  the  truth  of  the  in- 
formation. 

Illinois.  Walton  v,  Westwood, 
73   111.    125    (1874). 

Maine.  Bailey  v.  Worster,  103 
Me.  170  (1907),  semble;  Messer  v. 
Storer,  79  Me.  512   (1887),  semble. 

New  Jersey.  Huselton,  etc.,  Co. 
V.  Durie,  77  N.  J.  E.  437  (1910); 
Trimble  v.  American  Sugar,  etc. 
Co.,  61  N.  J.  E.  340   (1901). 

Vermont.  Crompton  v.  Beedle, 
83  Vt.  287  (1910);  Quinn  v.  Vali- 
quette,  80  Vt.  434    (1908). 

But  in  some  cases  it  has  been 
held  that  a  positive  allegation  of 
fact,  even  though  qualified  by  a 
statement  that  so  the  plaintiff  is 
informed  and  believes,  is  admitted 
on  demurrer.  Coryell  v.  Klemm, 
157  111.  462  (1895)1  Bates  v.  City, 
145  Mich.  574  (1906);  Watkins  v. 
Childs,  80  Vt.  99   (1907). 


394  EQUITY  PRACTICE 

been  seen  mere  legal  conclusions  and  matters  of  law 
should  not  as  a  general  rule  be  stated  in  the  pleadings. 
Thus  a  demurrer  will  not  admit  an  inference  of  law  or 
fact  not  authorized  by  the  facts  stated,  or  in  other  words 
a  repugnancy.^  So  a  demurrer  does  not  admit  general 
allegations  of  fraud,  since  they  are  conclusions  of  law, 
but  only  the  specific  facts  tending  to  show  fraud.^**  Like- 
wise, statements  or  conclusions  in  the  bill  contrary  to  a 
statute  or  to  any  other  matter  of  which  the  court  takes 
judicial  cognisance  are  not  admitted  by  demurrer.^^ 

§  215.  Different  grounds  of  demurrer.  Demurrers  may 
be  either  to  the  relief  prayed,  or  if  discovery  is  sought  to 
the  discover}^  only,  or  to  botli.^-  Demurrers  to  the  relief 
are  the  only  ones  which  will  be  considered  here.^^  Demur- 
rers to  relief  may  be  either  to  the  jurisdiction,  to  the 
substance  of  the  bill,  or  to  the  form  of  the  bill. 

§  216.  Demurrers  to  the  jurisdiction.  Demurrers  to 
the  jurisdiction  are  on  account  either  of  subject  matter, 
of  person,  or  of  amount. ^^    First  as  to  the  subject  matter, 

9.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  464,  33  L.  ed.  426  (1889),  semhle ; 
p.  545;  Bridger  v.  Thrasher,  22  Louisville,  etc.,  Co.  v.  Palmes,  109 
Fla.  383   (1886).  U.   S.    253,   27    L.    ed.   252    (1883). 

10.  Florida.  McClinton  v.  12.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
Chapin,  54   Fla.  510   (1907).     .              p.  547. 

Mississippi.     Hanson     v.     Field,  13.  For   demurrers   to    discovery, 

41   Miss.   712    (1868);  Bell  v.  Hen-  see    Dan.    Ch.    Pr.    (6th    Am.    ed.) 

derson,   7   Miss.   311    (1842).  563;    Story's    Eq.    PI.,    (10th    ed.), 

New  Jersey.     Schuler   v.  South-  Sees.  545  to  611. 

ern  Iron,  etc.,  Co.,  77  N.  J.  E.  60  14.  Demurrers     do     not     lie     for 

(1910).  want  of  territorial  jurisdiction  by 

Tennessee.      Reed   Fertilizer    Co.  reason  of  non-residence,  failure  of 

V.  Thomas,  97  Tenn.  478   (1896).  service,   or   failure   of   appearance, 

Vermont.      Quinn   v.    Valiquette,  since  a  demurrer  in  such  case  con- 

80  Vt.  434   (1908).  stitutes  a  general  appearance,  and 

West    Virginia.      Billingsley    v.  cures  the  very  defect  of  which  it 

Manear,  44  W.  Va.  651    (1898).      '  is  sought  to  take  advantage.     See 

United    States.     Fogg    v.    Blair,  New   York  v.  New  .Jersey,   6   Pet. 

139  U.  S.  118,  35  L.  ed.  104  (1890).  323,  8  L.  ed.  414   (1832);   Ogdens- 

11.  Middlesex  Transp.  Co.  v.  burg  R.  Co.  v.  Vermont  R.  Co.,  63 
Penna.  R.  Co.,  89  Atl.  45  (N.  J.  Eq.  N.  Y.  176   (1875). 

1913);    Pennie   v.   Reis,    132   U.   S. 


DEMURRERS 


395 


it  may  be  said  that  a  demurrer  will  lie  wherever  the  sub- 
ject matter  of  the  bill  is  not  such  as  a  court  of  equity 
assumes  the  power  to  consider  and  remedy,^^  but  which 
is  within  the  jurisdiction  of  some  other  court,  viz.,  either 
a  court  of  common  law,  probate,  bankruptcy,  or  admir- 
alty. Therefore,  wherever  it  appears  by  the  bill  that 
the  subject  matter  of  the  suit  is  within  the  exclusive 
jurisdiction  of  one  of  these  courts,  a  demurrer  will  lie. 
Those  subject  matters  which  properly  come  within  the 
scope  of  equity  jurisdiction  are  discussed  in  the  chapter 
on  general  equity  jurisdiction,  as  also  those  which  belong 
to  the  exclusive  jurisdiction  of  common  law  and  pro- 
bate.i« 

§  217.  — Common  law.  As  to  courts  of  common  law, 
the  rule  may  be  laid  down  that  a  demurrer  will  lie  to  a  suit 
in  equity  for  a  cause  for  which  the  courts  of  common  law 
have  always  furnished  an  adequate  remedy,^^  as  where 
an  "ejectment  bill"  is  brought  for  the  possession  of 


15.  E.  g.,  because  of  statutory 
restrictions  on  the  power  of  the 
court  in  the  premises.  Eeed  v. 
Johnson,  24  Me.  322  (1844);  Tooks 
V.  Purnell,  101  Md.  320  (1905); 
Jennes  v.  Landes,  84  Fed.  73 
(1897);  Ketchum  v.  Driggs,  6 
McL.   13,  F.  C.  7735   (1853). 

16.  See  Chap.  II,  ante,  pp.  9  ct 
seq. 

17.  Alabama.  Attala,  etc.,  Co. 
V.  Winchester,  102  Ala.  184 
(1893);  Tillman  v.  Thomas,  87 
Ala.  321   (1888). 

Florida.  Keen  v.  Jordan,  13 
Fla.  327    (1870). 

Illinois.  Wangelin  v.  Goe,  50 
111.  459    (1869). 

Maine.  York  v.  Murphy,  91  Me. 
320   (1898). 

Massachusetts.  Gale  v.  Xicker- 
son,  151  Mass.  428,  9  L.  R.  A.  200 
(1890). 

New  Hampshire.  City  v.  Hodge, 
73  N.  H.   617    (1906). 


Pennsylvania.  Eice  v.  Ruckle, 
225  Pa.  231  (1909). 

West  Virginia.  Petty  v.  Fogle, 
16  W.  Va.  497  (1880). 

United  States.  Young  v.  Mer- 
cantile Trust  Co.,  140  Fed.  61,  Aff. 
145  Fed.  39,  75  C.  C.  A.  264 
(1905-6). 

See  also  Chapter  II,  ante. 

In  Massachusetts,  demurrer  lies 
if  the  plaintiff  fails  affirmatively 
to  show  that  he  has  no  adequate 
remedy  at  law.  Jones  v.  Newhall, 
113  Mass.  244   (1874). 

If  the  objection  that  remedy  at 
law  is  adequate  is  not  taken  by 
demurrer,  it  cannot  be  availed  of 
later.  Law  v.  Ware,  238  111.  360 
(1909);  Penna.  R.  Co.  v.  Bogert, 
209  Pa.  589  (1904);  Consolidated, 
etc.,  Co.  V.  Coombs,  39  Fed.  25 
(1889).  Compare,  however,  Owens 
V.   Goldie,   213   Pa.   579    (1906). 


396  EQUITY  PRACTICE 

land;  ^^  but  where  equity  has  first  acquired  exclusive 
jurisdiction  over  the  subject  matter  embraced  in  the  suit, 
and  the  law  has  subsequently  encroached  thereon,  the 
jurisdiction  of  courts  of  law  and  equity  are  concurrent, 
and  a  demurrer  will  not  lie  even  though  the  remedy  at 
law  be  equally  plain  and  adequate;  ^^  as  where  a  bill  is 
brought  to  recover  a  sum  of  money  obtained  through 
fraud.-^ 

§  218.  — Probate.  As  to  courts  of  probate,  it  may  be 
said  that  in  most  states  matters  of  probate  and  adminis- 
tration belong  exclusively  to  the  jurisdiction  of  the  pro- 
bate court,  and  a  demurrer  will  in  those  states  therefore 
lie  to  a  bill  embracing  any  of  these  subject  matters,  except 
where  some  special  equitable  features  arise  in  which  the 
limited  statutory  powers  of  the  probate  court  are  inade- 
quate to  afford  the  required  relief.^ ^  In  a  few  states 
courts  of  equity  have  concurrent  jurisdiction  with  probate 
courts  in  respect  to  certain  matters  of  probate  and  admin- 
istration. In  these  states  of  course  demurrers  of  the  class 
mentioned  above  are  limited  in  scope  or  unknown. 

§  219.  — Bankruptcy.  The  United  States  district  court, 
which  is  our  court  of  bankruptcy,  exercises  a  special 
jurisdiction  defined  by  the  United  States  bankruptcy  act 
over  the  affairs  of  bankrupts,  and  any  bill  in  a  state  court 
is  liable  to  demurrer  if  the  subject  matter  of  the  bill  is 
exclusively  within  the  jurisdiction  of  the  Federal  court.  If 
however  the  suit  embraces  a  subject  matter  within  the 
jurisdiction  of  equity,  except  for  the  fact  of  bankruptcy, 
the  jurisdiction  of  equity  is  not  taken  away  unless  the 
bankruptcy  act  expressly  so  provides.^^ 

18.  Wangelin  v.  Goe,  50  111.  459  21.  Foster  v.  Foster,  134  Mass. 
(1869);  Spofford  v.  E.  Co.,  66  Me.  120  (1883);  Joslin  v.  Wheeler,  62 
51  (1876);  Maguire's  Appeal,  102  N.  H.  169  (1882),  semble ;  Fitz- 
Pa.  S.  120  (1883);  Newman  v.  simmons  v.  Lindsay,  205  Pa.  S.  79 
Westcott,   29   Fed.   49    (1886).  (1903);    Laut    v.    Manley,    75    Fed. 

19.  See  Chap.  II,  "Jurisdic-  627,  21  C.  C.  A.  457,  reversing  71 
tion,"  ante,  pp.  9  et  seq.  Fed.    7    (1896),    semble.     See    also 

20.  Taylor  v.  Taylor,  74  Me.  582  Chap.  II,  ante,  pp.  9  et  seq. 
(1883).  22.  Dan.   Ch.  Pr.    (6th  Am.   ed.), 


DEMURRERS  397 

§  220.  —Admiralty.  The  Judiciarj^  Act  of  1789  gave 
the  district  courts  of  the  United  States  jurisdiction  over 
all  maritime  causes,  or  in  other  words  over  all  matters  of 
contract  or  tort  arising  out  of  maritime  affairs.  This 
jurisdiction,  however,  is  not  exclusive  of  state  courts 
possessing  common  law  and  equity  powers.  In  many 
cases,  though  the  subject  matter  involved  is  distinctly 
maritime  in  its  nature,  and  cognizable  by  a  court  of 
admiralty,  nevertheless  a  personal  civil  suit  may  be 
brought  in  the  state  courts  concerning  the  same  mat- 
ter ^^  either  at  law  or  in  equity,  provided  in  the  latter 
case,  some  equitable  feature  is  also  jjresent,  such  as 
fraud  or  trust  and  the  like.  Consequently,  in  such  cases 
a  demuiTer  would  not  lie.  But  common  law  or  equitable 
remedies  are  not  available  to  enforce  maritime  liens  by 
proceedings  in  rem.-*  Consequently,  where  it  is  neces- 
sary to  proceed  in  rem,  the  jurisdiction  of  the  court  of 
admiralty  is  exclusive,  and  a  demurrer  would  lie  to  a 
bill  in  equity  for  such  a  purpose. 

§  221.  Demurrers  to  the  person — Partial  disability  of 
plaintiff.     What  these  disabilities  are  has  already  been 


p.  553  and  p.  60  note  a,  citing  cases  rer  to  the  bill.  Proceedings  under 
aflBrming  the  foregoing  rule  in  similar  statutes  have  been  sus- 
English  chancery  practice.  And  tained  in  other  states,  the  point 
see  Ex  parte  Brown,  11  Ch,  D.  148.  of  the  possible  conflict  of  the  stat- 
in Curry  v.  McCauley,  20  Fed.  utes  with  the  bankruptcy  act  not 
583  (1884),  where  the  bankruptcy  being  raised.  Jones  v.  Mutual, 
act  expressly  prescribed  the  mode  etc.,  Co.,  123  Fed.  506  (1903),  Del- 
of  procedure  and  the  penalty  when  aware  statute;  Oil  City,  etc.,  v. 
the  holder  of  a  mortgage  security  Pelican,  etc.,  Co.,  115  La.  265 
refuses  to  account  for  it,  the  court  (1905);  Gilroy  v.  Somerville  Mills, 
held  that  equity  could  not  take  67  N.  J.  Eq.  479  (1904);  McMul- 
jurisdietion.  lin  v.  McArthur  &  Co.,  73  N.  J.  Eq. 

In    Moody    v.    Development    Co.,  527  (1907). 
102  Me.  315   (1907)   the  court  held  23.  Leon    v.    Galceran,    11    Wall, 

of  no  effect  a  law  which  attempted  185,  20  L.  ed.  74  (1871);  Stewart 

to   give   the   state   court   of   equity  v.  Ferry   Co.,   12  Fed.   296    (1882). 
the   right   to   appoint   receivers    of  24.  The  Belfast,  7  Wall.  644,  19 

insolvent   corporations.      The   deci-  L.  ed.  266  (1868). 
sion  was  not,  however,  on  demur- 


398 


EQUITY  PRACTICE 


stated  above  at  some  length.-'  They  are  practically  con- 
fined to  partial  disabilities,  i.  e.  incapacities  which  merely 
prevent  the  party  from  suing  alone,  such  as  infancy  or 
insanity.  In  such  cases,  suit  must  be  brought  by  next 
friend  or  guardian.  Consequently,  if  no  next  friend  or 
guardian  be  named  in  the  bill  a  demurrer  will  lie.^*^ 

§  222.  Demurrers  as  to  amount.  Whenever  it  appears 
on  the  face  of  the  bill  that  the  amount  involved  in  the  con- 
troversy is  so  small  that  it  is  beneath  the  dignity  of  the 
court  to  take  jurisdiction,  a  demurrer  will  lie.  Such  cases 
are  usually  those  involving  less  than  $50  or  $100,  except 
where  the  bill  seeks  to  establish  a  right  of  a  permanent 
or  valuable  nature.-' 

§223.  Demurrers  to  the  substance  of  the  bill.  The 
chief  grounds  of  demurrers  to  the  substance  are  as  fol- 
lows: 1,  that  the  plaintiff  or  the  defendant  who  demurs 
is  an  improper  party  to   the  suit;-^  2,  that  although 


25.  See  Chapter  IV  ("Par- 
ties"), Sees.  45-46,  ante,  pp.  59  et 
scq. 

26.  Hoyt  V.  Hoyt,  58  Vt.  538 
(1886). 

It  seems  that  the  want  of 
capacity  in  a  voluntary  association 
to  sue  may  be  taken  advantage  of 
by  demurrer.  Franklin  Union  v. 
People,  121  111.  App.  647,  220  111. 
355   (1905-6). 

On  the  other  hand,  a  bill 
brought  by  next  friend  is  demur- 
rable if  it  does  not  show  that  the 
plaintiff  is  under  disability  to  sue 
in  his  own  name.  West  v.  Reyn- 
olds, 35  Fla.  317    (1895). 

27.  Maine.  Woodbury  v.  Marine 
Society,  90  Me.  17   (1897),  semble. 

Massachusetts.  Wilkinson  v. 
Stitt,  175  Mass.  581  (1900);  Gale 
v.  Nickerson,  151  Mass.  428,  92 
R.  A.  200  (1890);  Chapman  v.  Pub- 
lishing Co.,  128  Mass.  429   (1880); 


Cummings  v.  Barrett,  10  Cush. 
(Mass.)    186    (1852). 

Michigan.  Brassington  v.  Wald- 
ron,  143  Mich.  364  (1900);  Stiilc 
V.  Hess,   112   Mich.  678    (1897). 

New  Jersey.  Allen  v.  Demar- 
est,  41  N.  J.  E.  162  (1886),  scmhle. 

Compare  York  v.  Murphy,  91 
Me.  320  (1898),  where  the  court 
took  jurisdiction  to  annul  a  chat- 
tel  mortage  to  secure  $47.25. 

A  demurrer  for  amount  will  not 
be  sustained  when  the  amount  in 
controversy  does  not  appear  on  the 
face  of  the  bill.  George  v.  Rollins, 
142  N.  W.  337   (Mich.  1913). 

See  Chapter  III,  Sec.  41,  ante, 
p.  51. 

28.  See  Chapter  IV  ("Par- 
ties"), Sec.  64a,  ante,  p.  106,  as  to 
who  are  improper  parties;  and 
Sec.  77,  notes  33,  34,  ante,  pp.  155, 
156,  for  cases  where  the  objection 
of  misjoinder  of  improper  parties 
has  been  taken  bv  demurrer. 


DEMURRERS 


399 


equity  has  jurisdiction  of  the  subject  matter  involved, 
yet  the  facts  stated  in  the  bill  do  not  justify  any  relief;  -"^ 
3,  that  the  prayer  for  relief  upon  the  facts  stated  in  the 
bill  is  defective  in  substance;  ^^  4,  that  the  bill  does  not 
embrace  the  whole  matter ;  ^^  5,  that  there  is  a  want  of 
necessary  parties ;  "^  6,  that  the  bill  is  multifarious ;  ^^  7, 


29.  This  is  the  general  demurrer 
for  total  want  of  equity  in  the  bill. 
See  note  48  to  section  230,  post, 
p.  406.  See  also  Chapter  IV,  "Orig- 
inal Bills,"  Sees.  92-99,  ante,  pp. 
176  et  seq.,  for  discussion  of  the 
facts  to  be  stated  and  the  manner 
of  stating  them  so  as  to  justify  re- 
lief. 

The  want  of  a  particular  neces- 
sary allegation  is  available  under 
general  demurrer,  where  general 
demurrers  are  in  use;  but  it  may 
also  be  taken  advantage  of  by  a 
demurrer  addressed  specially  to 
the  missing  allegation.  See,  e.  g., 
Davis  V.  Rogers,  33  Me.  222 
(1851);  Goldengay  v.  Smith,  62  N. 
J.  E.  354  (1901);  Clark  v.  Rhode 
Island,  etc..  Works,  24  R.  I.  307 
(1902). 

30.  See  Chapter  V  ("Original 
Bills"),  Sec.  121,  notes  60,  61, 
ante,  p.   227. 

31.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  330,  citing:  Purefoy  v.  Purefoy, 
1  Vern.  29;  Margrave  v.  Le 
Hooke,  2  Vern.  207;  Shuttleworth 
V.  Laycock,  1  Vern.  245;  Jones  v. 
Smith,  2  Ves.  Jr.  376. 

32.  Florida.  Keen  v.  Jordan,  13 
Fla.  327,  383   (1870). 

Maine.  Strout  v.  Lord,  103  Me. 
410  (1908),  semhle;  Davis  v. 
Rogers,  33  Me.  222   (1851). 

Massachusetts.  Eustis,  etc.,  Co. 
v.  Saco,  etc.,  Co.,  198  Mass.  212 
(1908). 

Michigan.      Stille    v.    Hess,    112 


Mich.  678  (1897);  Burke  v.  Mus- 
kegon, etc.,  Co.,  98  Mich.  614 
(1894). 

New  Jersey.  Knikel  v.  Spitz,  74 
N.  J.  E.  581  (1908);  Wilson  v.  Bel- 
lows, 30  N.  J.  E.  282   (1878). 

Virginia.  Lynchburg,  etc.,  Co. 
v.   Tayloe,   79  Va.   671    (1884). 

West  Virginia.  Wm.  Janes,  etc, 
Co.  V.  Farley,  76  S.  E.  169  (W.  Va. 
1912);  Augir  v.  Wardir,  68  W.  Va. 
752  (1911). 

There  can  be  no  demurrer  for  a 
defect  in  service  on  a  party  named 
in  the  writ.  Ludington  v.  Eliza- 
beth, 32  N.  J.  E.  159  (1880);  Kil- 
gour  v.  New  Orleans,  etc.,  Co.,  14 
F.  C.  7764,  2  Woods  144  (1875). 

Objection  for  lack  of  parties 
must  be  taken  by  demurrer  not  by 
motion.  Wood  v.  Wood,  56  Fla. 
882  (1908).  Usually  a  special  de- 
murrer is  preferable,  even  in  juris- 
dictions where  the  objection  ,  can 
be  considered  on  general  demur- 
rer. Laughton  v.  Harden,  68  Me. 
208  (1878).  A  special  demurrer 
for  lack  of  parties  should  supply 
the  names  of  the  parties  omitted. 
See  Ch.   IV,  note   19,  ante,  p.   152. 

A  bill  is  of  course  not  demur- 
rable for  lack  of  a  party,  which 
states  good  grounds  for  the  omis- 
sion of  that  party.  Baker  v.  At- 
kins, 62  Me.  205  (1873). 

33.  See  Chapter  V  ("Original 
Bills"),  Section  116,  note  33,  ante, 
p.  216. 


400 


EQUITY  PRACTICE 


the  statute  of  limitations,  or  ladies;  -^^  8,  the  statute  of 


34.  Alabama.  Snodgrass  v. 
Snodgrass,  58  So.  201  (Ala.  1912); 
Lovelace  v.  Hutchinson,  106  Ala. 
417  (1894);  James  v.  James,  55 
Ala.  525  (1876);  compare  Grand 
Lodge  V.  Grand  Lodge,  56  So.  963 
(Ala.  1911). 

Delaware.  Martin  v.  Martin, 
74  Atl.  864  (Del.  1909). 

Florida.  Murrell  v.  Peterson,  57 
Fla.  480   (1909). 

Illinois.  Foss  v.  People 's,  etc., 
Co.,  241  111.  238  (1909);  Kerfoot  v. 
Billings,  160  111.  563  (1896);  Ilett 
V.  Collins,  103  111.  74  (1882),  stat- 
ute of  limitations. 

Maine.  Mooers  v.  Kennebec, 
etc.,  E.  Co.,  58  Me.  279   (1870). 

Maryland.  Reeder  v.  Lauahan, 
111  Md.  372  (1909);  Meyer  v.  Saul, 
82  Md.  459    (1896). 

Massachusetts.  Marvel  v.  Cobb, 
200  Mass.  293  (1908);  Tetrault  v. 
Fournier,  187  Mass.  58  (1904). 

Micliigan.  Earle  v.  Humphrey, 
121  Mich.  518   (1899). 

Mississippi.  Matthews  v.  Son- 
theimer,  39  Miss.  174  (1860), 
sevible. 

New  Jersey.  Schuler  v.  South- 
ern, etc.,  Co.,  77  N.  J.  E.  60  (1910); 
Dringer  v.  Jewett,  43  X.  J.  E. 
701  (1888);  Olden  v  Hubbard,  34 
N,  J.  E.  85  (1885),  statute  of  limi- 
tations. 

Tennessee.  McClurg  v.  Seed,  40 
Tenn.  218  (1859),  statute  of  limi- 
tations. 

West  Virginia.  Harris  v. 
Michael,  70  W.  Va.  356  (1912); 
Crawford 's  v.  Turner 's,  67  W.  Va. 
564  (1910),  statute  of  limitations; 
Newberger  v.  Wells,  51  W.  Va. 
624   (1902). 

United  States.  Speidel  v.  Hen- 
rici,   120   U.   S.   610,  30   L.   ed.   718 


(1886);  Alexander  v.  Fidelity  T. 
Co.,  215  Fed.  791  (1914),  motion 
to  dismiss  for  laches. 

In  Vermont,  a  demurrer  for 
laches  is  not  sustainable,  but  a  de- 
murrer on  the  ground  of  the  stat- 
ute of  limitations  may  be  allowed. 
Wilder  v.  Wilder,  82  Vt.  123 
(1909);  Gleason  v.  Carpenter,  74 
Vt.  399  (1902);  Sherman  v.  Wind- 
sor, 57  Vt.  57  (1885);  Drake  v. 
Wild,  65  Vt.  611  (1893).  So  also 
in  Sheldon  v.  Keokuk,  etc.,  Co.,  8 
Fed.  769  (1881),  it  is  said  that 
laches  short  of  the  statutory  period 
is  a  doubtful  ground  of  demurrer. 
In  Robinson  v.  Ins.,  175  Fed.  629 
(1909)  on  the  other  hand,  the 
court  says  that  while  a  demurrer 
for  laches  is  proper,  the  statute  of 
limitations  should  generally  be 
pleaded.  But  Nash  v.  Ingalls,  101 
Fed.  645,  41  C.  C.  A.  545  (1900) 
is  a  Federal  case  where  demurrer 
based  on  the  statute  of  limitations 
was  sustained. 

It  may  be  said  in  general  that 
courts  of  equity  hold  themselves 
bound  by  the  statute  of  limita- 
tions in  respect  to  all  legal  titles 
and  demands.  Hovenden  v.  Lord 
Annesley,  2  Sch.  &  Lef.  630,  631. 
In  respect  to  equitable  titles  and 
demands,  the  courts  have  been  in- 
fluenced in  their  determination  by 
analogy  to  the  statute.  Bond  v. 
Hopkins,  1  Sch.  &  Lef.  428.  In 
applying  the  analogy,  however,  the 
court  acts  in  obedience  to  the 
spirit  of  the  statute  rather  than 
to  the  rules  of  the  statute  them- 
selves. Lawrence  v.  Rokes,  61  Me. 
42  (1867).  The  broad  equitable 
doctrine  of  laches  is  applicable 
however  quite  irrespective  of  any 
statute,  and  is  based  on  the  injus- 


DEMURRERS 


401 


frauds ;  ^^  9,  that  it  appears  by  the  bill  that  there  is 
another  suit  pending  for  the  same  matter,  in  a  court  of 
competent  jurisdiction  within  the  same  state.^*' 

§  224.  Demurrers  as  to  matters  of  form.  The  grounds 
for  demurrer  to  a  bill  for  deficiency  in  matters  of  form 
are  very  numerous,  but  the  following  are  some  of  the 
most  important:  1,  omission  to  state  the  plaintiff's  place 
of  abode  ;^^  2,  want  of  certainty  to  that  degree  which  is 


tiee  of  allowing  recovery  on  the 
facts  stated  in  a  bill  where  no  ex- 
planation is  given  of  a  delay  which 
appears  to  be  unreasonable  and  to 
have  worked  injustice.  Godden  v. 
Kimmell,  99  U.  S.  201,  25  L.  ed. 
431  (1878);  Stout  v.  Seabrook,  30 
N.  J.  Eq.  187  (1878);  Williams  v. 
Hart,  116  Mass.  513  (1875);  Le 
Gendre  v.  Byrnes,  44  N.  J.  Eq.  572 
(1888).  See  also  cases  cited  above 
in  this  note. 

Of  course  if  laches  appears  on 
the  face  of  the  bill  accompanied 
with  a  sufficient  explanation,  no 
demurrer  will  lie.  Coryell  v. 
Klehm,  157  111.  462  (1895).  Simi- 
larly, a  demurrer  relying  on  the 
statute  of  limitations  was  over- 
ruled in  Matthews  v.  Sontheimer, 
39  Miss.  174  (1860),  because  the 
bill  did  not  give  dates  to  which 
the  statute  could  be  plainly  applied. 

Where  a  general  demurrer  is 
known  to  the  local  equity  practice, 
such  a  demurrer  may  raise  the 
question  of  laches.  Johnson  v.  Mc- 
Kinnon,  45  Fla.  388  (1903);  Ker- 
foot  V.  Billings,  160  111.  563  (1896). 

35,  Fowler  v.  Fowler,  204  111.  82 
(1903),  semble;  Eoby  v.  Cossitt,  78 
111.  638  (1875);  Whiting  v.  Dyer, 
21  E.  T.  85  (1898),  semhle ;  Eandall 
V.  Howard,  2  Black  585,  17  L.  ed. 
269  (1863). 

But  the  bill  is  subject  to  demur- 
Whitehouse  E.  P.  Vol.  I — 26 


rer  for  this  cause  only  when  the 
non-compliance  with  the  statute  is 
shown  affirmatively  by  the  allega- 
tions of  the  bill.  Piedmont  Land, 
etc.,  Co.  V.  Piedmont  Foundry,  etc., 
Co.,  96  Ala.  389  (1891);  Manning 
V.  Pippen,  86  Ala.  357   (1888). 

Any  other  statute  may  be  set  up 
by  demurrer  where  it  appears  from 
the  bill  that  the  plaintiff's  right  or 
remedy  is  barred  thereby.  Heard's 
Eq.  PL  p.  65.  But  such  objections 
are  more  frequently  taken  by  plea, 
since  the  defect  is  seldom  appar- 
ent on  the  face  of  the  bill.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  561. 

36.  Tinker  v.  Babcock,  204  111, 
571  (1903);  Love  v.  Eobinson,  213 
Pa.  480  (1906),  semble;  Eandall  v. 
Howard,  2  Black  585,  17  L.  ed.  269 
(1863);  Allis  v.  Stowell,  15  Fed. 
242  (1883).  Contra,  Alabama 
Equity   Eule    112. 

Such  a  demurrer  will  not  hold 
unless  it  appears  by  the  bill  that 
the  suit  already  pending  will  af- 
ford the  plaintiff  the  same  relief 
as  he  would  be  entitled  to  in  the 
bill  in  question.  Allis  v.  Stowell, 
15  Fed.  242   (1883). 

37.  Winn.  Lake  Co.  v.  Worster, 
29  N.  H.  433  (1854);  Winn.  Lake 
Co.  v.  Young,  40  N.  H.  420  (1860). 
Compare  Howe  v.  Heisey,  8  Paige 
(N.  Y.)    73    (1839). 

Even  under   the   former  Federal 


402 


EQUITY  PRACTICE 


required ;  •'^''  3,  defects  of  form  in  a  prayer  of  the  bill ;  "'^  4, 
want  of  a  prayer  for  process;  "*"  5,  want  of  a  signature,  ^^ 
6,  want  of  an  affidavitj  whoro  verification  is  required. •- 
§  225.  Grounds  of  demurrer  to  amended  bills  and  bills 
not  original.  An  amended  bill  is  open  to  the  same  objec- 
tion on  demurrer  as  an  original  bill.^''    The  grounds  of 


equity  rules  an  objection  that  the 
bill  failed  to  comply  with  the  rule, 
formerly  No.  20,  now  No.  25,  in  re- 
spect to  citizenship  should  be  taken 
by  motion  and  not  by  demurrer. 
Wright  V.  Skinner,  136  Fed.  694 
(1905).  By  the  new  rules,  as  we 
have  seen,  all  demurrers  are  abol- 
ished.     Eq.    Rule    29. 

38.  Alabama.  Whittaker  v.  De 
Grafifenreid,  6  Ala.  303  (18-44). 

Illinois.  Roby  v.  Cossitt,  78  111. 
638   (1875). 

Maine.  Merrill  v.  Washburn,  83 
Me.  189  (1891);  Westbrook  Mfg. 
Co.  V.  Warren,  77  Me.  437   (1885). 

Massachusetts.  Marvel  v.  Cobb, 
200  Mass.  293  (1908),  argumenta- 
tiveness. 

Michigan.  Stille  v.  Hess,  112 
Mich.  678   (1897). 

Mississippi.  Hiller  v.  Cotton,  48 
Miss.  593  (1873);  Byrne  v.  Taylor, 
46  Miss.  95  (1871). 

New  Jersey.  Muller  v.  Muller, 
76  X.  J.  E.  158  (1909),  semble. 

United  States.  Randall  v.  How- 
ard, 2  Black  585,  17  L.  ed.  269 
(1863);  Strang  v.  Richmond,  etc., 
R.  Co.,  101  Fed.  511,  41  C.  C.  A. 
474  (1900);  Taylor  v.  Holmes,  14 
Fed.   498    (1882). 

A  demurrer  for  failure  to  num- 
ber paragraphs  as  required  by  the 
rules  was  overruled  in  Chew  v. 
Glenn,  82  Md.  370   (1896). 

A  demurrer  on  the  ground  that 
the  bill  was  illegible  was  overruled 


in   Downer   v.   Staines,  4   Wis.   372 
(1855). 

See  Chapter  V  ("Original 
Bills"),  Sees.  96,  97,  ante,  pp.  183 
et  seq.,  as  to  the  certainty  neces- 
sary in  bills  in  equity. 

39.  Miller  v.  Baltimore,  etc.,  Co., 
52  Md.  642  (1879);  Boon  v.  Pier- 
pont,  28  N.  J.  E.  7  (1877).  But  it 
seems  that  no  demurrer  lies  on  the 
ground  of  uncertainty  and  prolix- 
ity of  prayer.  McPherson  v.  Davis, 
95  Miss.  215  (1909). 

40.  Wright  v.  Wright,  8  N.  J.  E. 
143  (1849);  Armstrong  Cork  Co.  v. 
Merchants',  etc.,  Co.,  171  Fed.  778 
(1909);  Jennes  v.  Landes,  84  Fed. 
73   (1897). 

See  Chapter  V  ("Original 
Bills"),  Sec.  122,  ante,  p.  228. 

41.  Keen  v.  Jordan,  13  Fla.  327 
(1870),  semhle;  Wright  v.  Wright, 
8  N.  J.  E.  143  (1849), 

See  Chapter  V  ("Original 
Bills"),  Sec.  123,  ante,  p.  230. 

42.  See  Chapter  V  ("Orig- 
inal Bills"),  Sec.  124,  ante,  p.  232. 

On  demurrer  to  amended  bill  fail- 
ure to  verify  amendments  cannot 
be  complained  of,  because  the  de- 
murrer admits  the  truth  of  the 
amendments.  Fowler  v.  Fowler, 
204  111.  82  (1903). 

43.  Fowler  V.  Fowler,  204  111.  82 
(1903);  Young  v.  Mercantile  Trust 
Co.,  140  Fed.  61,  aff.  145  Fed.  39, 
75  C.  C.  A.  264  (1905-6),  semble; 
Bancroft  v.  Wardour,  2  Bro.  Ch. 
C.  66. 


DEMTTRRERS 


403 


demurrer  to  bills  of  interpleader  and  bills  not  original 
have  been  fully  considered  in  detail  under  those  heads.^^^ 
§  226.  Joinder  of  grounds  of  demurrer.  A  defendant 
may  assign  as  many  grounds  of  demurrer  as  lie  chooses, 
either  to  the  whole  bill  or  part  of  the  bill,  but  they  must 
be  stated  as  distinct  and  separate  causes  of  demurrer, 
and  if  any  one  of  the  grounds  assigned  holds  good,  the 
demurrer  will  be  allowed.^^ 


Usually  such  a  demurrer  is  to 
the  bill  as  amended,  and  not  to 
the  amendment  alone.  Hodges  v. 
Verner,  100  Ala.  612  (1892).  But 
see  cases  below  in  this  note  as  to 
demurrers  to  amended  bills  filed 
after  answer  to  original  bill. 

If  a  plaintiff  amends  his  bill, 
the  defendant  may  demur,  even 
though  a  demurrer  to  the  original 
bill  has  been  overruled.  Bowers  v. 
Hoegg,  15  Fla.  403  (1875).  Or  may 
reassign  grounds  of  demurrer  pre- 
viously overruled.  Kinney  y. 
Eeeves,  139  Ala.  386  (1903);  Cot- 
tingham  v.  Greeley,  123  Ala.  479 
(1898);  but  compare,  contra,  Elyton 
Land  Co.  v.  Denny,  108  Ala.  553 
(1895);  Bates  v.  Chapman,  108  Ala. 
225  (1895). 

If  a  bill  is  amended  or  a  supple- 
mental bill  filed  subsequent  to  the 
defendant 's  answer,  the  amend- 
ment or  supplemental  bill  may  be 
demurred  to.  State  v.  Mitchell, 
104  Tenn.  336  (1899);  Equity  Rule 
51  of  Pennsylvania. 

But  where  a  defendant  has  an- 
swered the  original  bill,  he  can- 
not afterward  file  a  general  de- 
murrer to  the  whole  bill  as  amend- 
ed, but  must  confine  his  demurrer 
to  the  new  matter,  otherwise  the 
demurrer  is  overruled  by  the  an- 
swer. Bond  V.  Penna.  Co.,  171  111. 
508,  reversing  69  111.  App.  507 
(1897-1898);    North    Chicago,    etc., 


R.  Co.  V.  Chicago  Union,  etc.,  Co., 
150  Fed.  612  (1907). 

Where,  however,  a  substantially 
new  case  is  made  by  an  amended 
or  supplemental  bill,  a  demurrer 
will  lie.  Williams  v.  Winans,  20 
N.  J.  E.  392  (1869);  Wing  v.  Cham- 
pion, 1  Tenn.  Ch.  517  (1873); 
Brainerd  v.  Buck,  16  App.  D.  C. 
595  (1900),  aff.  184  U.  S.  99,  46  L. 
ed.  449   (1902),  semhle. 

Sustaining  a  demurrer  on  the 
ground  just  mentioned  dismisses 
the  amended  bill  and  leaves  the 
original  bill  standing.  State  v. 
Mitchell,  104  Tenn.  336   (1899). 

A  demurrer  to  a  supplemental 
bill  may  raise  the  question  wheth- 
er the  whole  record  presents  a 
case  for  equitable  relief.  Cheever 
V.  Ellis,  144  Mich.  477,  390,  11  L. 
R.  A.  (N.  S.)  296  (1906);  Dillon  v. 
Davis,  3  Tenn.  Ch.  386   (1877). 

Failure  to  make  a  material  party 
to  an  original  bill  a  party  to  a  bill 
of  review  is  ground  for  demurrer. 
Fuller  V.  McFarland,  53  Tenn.  79 
(1871). 

That  an  amended  bill  waives 
sworn  answer  while  the  original 
bill  required  it  should  be  objected 
to  by  motion  and  not  by  demur- 
rer. Springfield  Co.  v.  Ely,  44  Fla. 
319  (1902). 

43a.  See  Sec.  127,  anie,  p.  241, 
and  Chap.  VI,  ante,  p.  249. 

44.  Kinney   v.   Reeves,   139    Ala. 


404  EQUITY  PRACTICE 

§  227.  Kinds  of  demurrer.  Demurrers  may  be  classed 
as  demurrers  to  the  whole  bill,  demurrers  to  part  of  the 
bill,  general  demurrers,  special  demurrers,  speaking- 
demurrers,  and  demurrers  ore  tenus. 

§  228.  Demurrers  to  the  whole  bill.  A  demurrer  to 
the  whole  bill,  as  the  term  implies,  is  one  which  denies 
that  there  is  any  ground  for  relief  in  any  part  of  the  bill, 
and  leaves  nothing  which  it  is  necessary  to  meet  by  plea 
or  answer.  It  may  be  in  general  terms,  where  the  defect 
is  manifest,  or  it  may  specially  assign  the  particular 
ground  of  demurrer,  but  in  either  case  it  goes  to  the  whole 
bill,  asserting  that  no  part  of  it  is  sufficient, 

A  demurrer  cannot  be  good  in  part  and  bad  in  jDart; 
where  a  demurrer  is  to  the  whole  bill,  if  there  is  any  part 
which  on  its  face  entitles  the  plaintiff  to  relief,  and  which 
therefore  requires  an  answer,  the  demurrer  being  entire 
must  be  overruled.^^  The  defendant  should  answer  that 
which  is  good  and  demur  to  that  which  is  bad. 

386   (1903) ;   Coleman-  v.  Butt,  130  Mississippi.       Hentz     v.     Delta 

Ala.  266  (1900);  Watson  v.  Jones,  Bank,  76  Miss.  429   (1899);  Marye 

121  Ala.  579   (1898);   Dan.  Ch.  Pr.  v.  Dychc,  42  Miss.  347  (1869). 

(6th  Am.  ed.),  p.  588,  citing:  Bar-  New    Hampshire.      Treadwell    v. 

bar  V.  Barber,  4  Drew  666;  Harri-  Brown,  44  N.  H.  551   (1863). 

son  V.  Hogg,  2  Yes.  Jr.  323;  Jones  New    Jersey.      Junior    Order    v. 

V.   Frost,    3   Mad.    1,    9,   Jae.    466;  Sharpe,  63  N.  J.  E.  500  (1902). 

Cooper  V.  Earl  Powis,  3  DeG.  &  S.  Rhode      Island.        Sprague        v. 

688.  Rhodes,  4  R.  I.  301  (1856). 

45.  Alabama.    MacMahon  v.  Mac-  Tennessee.     Madison  v.  Sulphur, 

Mahon,  170  Ala.  338   (1910).  ^^^^  ^^^  ^^^  ^^^^    33^         ^^^ 

Florida.     LaFayette  Land  Co.  v. 

Caswell,  59  Fla.   544   (1910);   Dur-  Virginia.      Virginia,   etc.,   Co.   v. 

,  at.  41     171        no      Roberts,   103  Va.  661    (1905). 

ham    V.    Stevenson,    41    Fla.     112  '  ^         ' 

(1899)  West  Virginia.     Smith  v.  Peter- 
Maine.     Trask  v.  Chase,  107  Me.  son,   76  S.   E.   804   (W.   Va.   1912); 

137    (1910);    Laughton   v.   Harden,  Dudley  v.  Niswander  &  Co.,  65  W. 

68  Me.  208   (1878).  "^'a.  461  (1909). 

Maryland.     Hogan  v.  McMahon,  Under  a  demurrer  to  the  whole 

115  Md.   195    (1910).  bill,  grounds  of  demurrer  not  going 

Massachusetts.      Conant  v.  War-  to  the  whole  bill  cannot  be  consid- 

ren,  6  Gray   (Mass.)   562   (1856).  ered      Orlando    v.    Equitable,    etc., 

Michigan.     Shaw     v.     Case,     77  Assn.,  45  Fla.  507  (1903);  Jones  v. 

Mich.  430  (1889).  Jones,  99  Miss.  600   (1911);  Wash- 


DEMURRERS 


405 


§  229.  Demurrers  to  part  of  the  bill.  In  demurring 
to  that  part  of  the  bill  which  is  bad,  it  is  necessary  to 
point  out  distinctly  that  part  of  the  bill  to  which  the 
demurrer  is  intended  to  apply.^*^  So  where  there  are  two 
or  more  distinct  demurrers  to  different  portions  of  the 
bill,  the  different  parts  of  the  bill  to  be  covered  by  the 
demurrer  must  be  distinctly  pointed  out,  and  where  a 
demurrer  is  put  in  to  the  amended  portion  of  a  bill  the 
particular  parts  must  be  specially  pointed  out.^'^ 


ington  V.  Soria,  73  Miss.  665 
(1896). 

But  although  a  demurrer  cannot 
be  good  in  part  and  bad  in  part,  it 
may  be  good  as  to  one  of  the  de- 
fendants demurring  and  bad  as  to 
the  others.  Dzialinski  v.  Board, 
23  Fla.  346  (1887),  semble;  Bar- 
stow  V.  Smith,  Walk.  Ch.  (Mich.) 
394  (1844).  But  it  seems  that  such 
demurrers  must  be  joint  and  sev- 
eral rather  than  joint.  Phillips  v. 
Jacobs,  145  Mich.  108  (1906); 
Burke  v.  Muskegon,  etc.,  Co.,  98 
Mich.  614  (1894);  compare  Taylor 
V.  Matthews,  53  Fla.  776  (1907); 
Simpson  v.  Bockius,  77  N.  J.  E, 
339    (1910). 

Although  a  demurrer  cannot  be 
allowed  in  part,  of  course  a  de- 
fendant may  put  in  separate  de- 
murrers to  separate  and  distinct 
parts  of  the  bill  for  separate  and 
distinct  causes.  The  same  grounds 
of  demurrer  frequently  will  not 
apply  to  different  parts  of  the  bill, 
though  the  whole  may  be  liable  to 
demurrer.  In  such  case,  one  de- 
murrer may  be  overruled  upon  the 
argument  and  another  sustained. 
North  V.  Earl  of  Strafford,  3  P. 
Wms.  148. 

46.  Gray  v.  Eegan,  23  Miss.  304 
(1852);  Holt  v.  Hamlin,  120  Tenn. 
496  (1908);  Chicago,  etc.,  E.  Co.  v. 
Macomb,  2  Fed.  18   (1880);  Atwill 


V.  Ferrett,  2  Blatchf.  39,  F.  C.  640 
(1846). 

Where  the  ground  of  the  bill  and 
the  nature  of  the  relief  sought  are 
single,  separate  demurrers  to  sepa- 
rate portions  are  not  allowable; 
there  should  be  a  single  demurrer 
going  to  the  essential  basis  of  the 
bill.  Payne  v.  Berry,  3  Tenn.  Ch. 
154  (1876);  Brien  v.  Buttorf,  2 
Tenn.  Ch.  523   (1875). 

In  Payne  v.  Berry,  3  Tenn.  Ch. 
154  (1876),  the  court  said  that  a 
demurrer  to  "all  that  part  of  the 
bill  not  pleaded  or  demurred  to" 
was  not  sufficiently  precise;  fol- 
lowing Lord  Eedesdale,  in  Devon- 
shire v.  Newenham,  2  Sch.  &  Lef. 
199,  205.  But  a  demurrer  to  all  the 
bill  except  a  particular  specified 
part  would  not  be  open  to  this  ob- 
jection, and  where  the  exception 
applies  to  a  very  small  part  of  the 
bill  only,  it  has  been  held  to  be  a 
proper  way  of  demurring.  Hicks  v. 
Eaincock,  1  Cox  40. 

A  demurrer  to  part  of  the  bill, 
though  good  in  itself,  may  be  over- 
ruled if  the  rest  of  the  bill  is  not 
covered  by  demurrer,  plea  or  an- 
swer. Southern  E.  Co.  v.  Hays,  150 
Ala.  212  (1907);  Worthington  v. 
Miller,  134  Ala.  420  (1901);  Beall 
V.  Lehman  Co.,  110  Ala.  446 
(1895). 

47.  Munch    v.    Shabel,    37    Mich. 


406 


EQUITY  PRACTICE 


§  230.  Gene^-al  demurrers.  A  general  demurrer  is  one 
that  demurs  to  the  bill  in  general  terms  only,  on  the 
ground  that  "there  is  no  equity  in  the  bill,"  without 
specifying  any  particular  defect.*^    A  general  demurrer 


166  (1877).  A  demurrer  to  so  much 
of  the  amended  bill  as  has  not  been 
answered  by  the  answer  to  the 
original  bill  is  bad.  Myud  v.  Fran- 
cis, 1  Anst.  5. 

48.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  455.  This  seems  to  be  the 
only  definition  of  a  general  demur- 
rer which  is  theoretically  correct 
and  which  will  stand  the  test.  It 
is  not  accurate  to  say  that  a  gen- 
eral demurrer  is  one  to  the  juris- 
diction or  the  substance  of  the 
bill,  for  a  special  demurrer  also 
lies  to  the  jurisdiction  and  the 
substance  equally  well  and  quite 
as  frequently.  But  of  course  in  a 
general  demurrer  it  is  not  enough 
to  say  simply  that  the  defendant 
demurs  to  the  bill.  He  must  as- 
sign the  general  cause  that  there 
is  no  equity  in  the  bill.  (Dan.  Ch. 
Pr.,  6th  Am.  ed.,  p.  586.)  This  is 
the  only  ground,  however,  which 
can  be  assigned  to  a  general  de- 
murrer. A  demurrer  which  assigns 
particular  grounds  of  objection 
other  than  the  want  of  equity  (if 
that  can  be  called  a  particular 
ground)  is  not  a  general  but  a  spe- 
cial demurrer.  To  speak  of  a 
"general  demurrer  which  assigns 
the  particular  grounds  of  demur- 
rer," as  is  sometimes  done,  is  a 
contradiction  of  terms.  What  is 
meant  in  such  a  case  is  a  special 
demurrer  to  the  whole  bill  for 
some  particular  defect  of  jurisdic- 
tion or  substance.  The  confusion 
has  perhaps  arisen  from  uncon- 
sciously regarding  a  general  de- 
murrer as  synonymous  with  a   de- 


murrer to  the  whole  bill  and  a 
special  demurrer  as  confined  to 
part  of  the  bill.  But  so  far  as  ap- 
pears, there  is  no  reason  why  a  de- 
fendant may  not  with  equal  pro- 
priety demur  generally  to  a  dis- 
tinct portion  of  the  bill,  pointing 
out  that  on  the  plaintiff's  own 
showing  that  portion  of  the  case 
is  devoid  of  equity  and  does  not 
furnish  any  ground  for  relief.  On 
the  other  hand,  it  is  certain  that 
a  special  demurrer  for  a  defect  of 
jurisdiction  or  substance,  i.  e.,  a 
demurrer  which  specifies  the  par- 
ticular defect  of  jurisdiction  or 
substance,  goes  to  the  whole  bill, 
and  shows  that  the  bill  is  devoid  of 
equity  and  that  no  part  of  it  jus- 
tifies relief,  just  as  much  as  a  gen- 
eral demurrer  which  simply  asserts 
that  want  of  equity  in  general 
terms  while  relying  on  exactly  the 
same  defect  as  that  particularly 
specified  by  the  special  demurrer. 

In  Michigan  practice,  however, 
the  term  "general  demurrer"  has 
been  defined  as  equivalent  to  de- 
murrers extending  to  the  whole 
bill,  under  a  statute  permitting  ap- 
peals from  the  overruling  of  "gen- 
eral ' '  demurrers,  but  not  from 
overruling  "special"  demurrers. 
Ideal,  etc.,  Co.  v.  Hagle,  126  Mich. 
262  (1901);  Robinson  v.  Kunkel- 
man,  117  Mich.  193  (1898);  Shaw 
V.  Case,  77  Mich.  430  (1889);  Coch- 
rane V.  Adams,  50  Mich.  16  (1883). 

Under  the  rules  or  statutes  of 
some  of  the  states  demurrers  must 
in  all  cases  specify  the  special 
grounds  of  demurrer.    See  the  cita- 


DEMURRERS 


407 


is  never  used  for  defects  in  the  jurisdiction  or  the  sub- 
stance of  the  bill.  Objections  to  matters  of  form  cannot 
be  raised  by  general  demurrer.^ ^  Since  a  general  demur- 
rer does  not  specify  any  particular  defect  other  than 
want  of  equity  in  the  bill,  it  should  only  be  employed 
where  the  want  of  equity  is  plainly  manifest.^'' 


tions  in  footnote  64,  post,  p.  413; 
Alabama,  Code,  Sec.  3271;  New 
Jersey,  Eq.  Eule  209;  Ehode 
Island,  Eq.  Eule  21;  Vermont,  Eq. 
Eule  19.  Under  these  provisions, 
a  specification  merely  of  want  of 
equity  is  generally  held  sufficient. 
In  Alabama  this  is  expressly  so  by 
the  Code,  Sec.  3271.  The  same  has 
been  held  in  Maryland.  Eeeder  v. 
Lanahan,  111  Md.  372  (1909).  The 
Tennessee  courts  hold  to  the  con- 
trary. McNutt  V.  Eoberts,  48  S.  W. 
300  (Tenn.  Ch.  App.  1901);  Ches- 
ney  v.  Eodgers,  48  Tenn.  239 
(1870).  In  New  Jersey  the  courts 
hold  under  Eq.  Rule  207  that  when 
the  want  of  equity  is  clearly  mani- 
fest on  the  face  of  the  bill  from 
a  mere  inspection  of  its  allegations, 
no  further  specification  of  the  ob- 
jections to  the  bill  other  than  that 
it  lacks  equity  is  necessary;  but 
otherwise  the  demurrer  must  speci- 
fy the  grounds  on  which  it  relies, 
— in  other  words,  must  become  a 
Kpecial  demurrer  rather  than  a  gen- 
eral demurrer.  McCarter  v.  United, 
etc.,  Co.,  75  N.  J.  E.  158  (1909); 
Knikel  v.  Spitz,  74  N.  J.  E.  581 
(1908);  Safiford  v.  Barber,  74  N.  J. 
E.  352  (1908);  Demarest  v.  Ter- 
hune,  62  N.  J.  E.  663  (1901); 
Goldengay  v.  Smith,  62  N.  J.  E.  354 
(1901);  Parker  v.  Stevens,  61  N.  J 
E.  163  (1900);  Larter  v.  Canfield, 
59  N.  J.  E.  461  (1900);  Esses 
Paper  Co.  v.  Greacen,  45  N.  ,J.  E. 
504     (1889);     Maeder     v,     Buffalo 


Bill's,  etc.,  Co.,  132  Fed.  280  (1904). 
In  the  West  Virginia  practice  the 
court  at  the  hearing  or  prior  there- 
to may  ask  an  assignment  of  spe- 
cial objections,  although  a  general 
demurrer  is  allowable.  Cook  v. 
Dorsey,  38  W.  Va.  196  (1893). 

49.  Florida.  Carlton  v.  Hilliard, 
64  ria.  228  (1912),  semble ;  McCoy 
V.  Boley,  21  Fla.  803   (1886). 

Maine.  Trask  v.  Chase,  107  Me. 
137    (1910),  semble. 

Maryland.  Miller  v.  Baltimore, 
etc.,  Co.,  52  Md.  642   (1879). 

Massachusetts.  Billings  v. 
Maun.   156  Mass.  203   (1892). 

Michigan.  Glidden  v.  Nowell,  44 
Mich.  202  (1880). 

Mississippi.  Murrell  v.  Jones,  40 
Miss.  565   (1866). 

New  Jersey.  Wilson  v.  Hill,  46 
N.  J.  E.  367  (1890);  Boon  v.  Pier- 
pont,  28  N.  J.  E.  7  (1877). 

Vermont,  Stewart  v.  Flint,  57 
Vt.  216   (1884). 

United  States.  Pacific  Live 
Stock  Co.  v.  Hanley,  98  Fed.  327 
(1899).  But  in  Taylor  v.  Holmes, 
14  Fed.  498  (1882),  a  general  de- 
murrer was  sustained  partly  on  the 
ground  of  want  of  certainty  in  the 
bill — a  defect  of  form. 

Multifariousness  cannot  be 
claimed  under  a  general  demurrer 
for  want  of  equity.  Flynn  v.  Third 
Nat.  Bank,  122  Mich.  642  (1900); 
Fay  V.  Jones,  38  Tenn.  442  (1858). 

50.  Bidder  v.  McLean,  20  Ch.  D. 


408 


EQUITY  PRACTICE 


§  231.  Special  demurrers.  A  special  demurrer  is  one 
which  specilies  particular  grounds  of  objection  to  the  bill 
other  than  general  want  of  equity .^^  It  may  be  either  to 
the  whole  bill,  or  to  part  of  the  bill,  and  will  lie  as  well  to 
matters  of  jurisdiction  and  substance  as  to  defects  of 
form.  To  take  advantage  of  defects  of  form,  however,  a 
special  demurrer  is  indispensable.^^ 

§  232.  Demurrers  ore  tenus.  A  defendant  may  at  the 
hearing  of  his  demurrer,  orally  assign  another  cause  of 
demurrer  different  from  or  in  addition  to  those  assigned 
upon  the  record,  which  if  valid  will  support  the  demurrer, 
although  the  grounds  stated  in  the  demurrer  itself  are 
overruled.  This  oral  statement  of  a  cause  of  demurrer  is 
called  demurring  *'ore  tenus," ^^    But  a  defendant  can- 


512;  Essex  Paper  Co.  v.  Greacen,  45 
N.  J.  E.  504  (1889). 

On  general  demurrer  the  plain- 
tiflF  or  the  court  may  require  the 
grounds  of  demurrer  to  be  specially- 
stated.  Cook  V.  Dorsey,  38  W.  Va. 
196  (1893);  Taylor  v.  Holmes,  14 
Fed.    498    (1882). 

51.  Story's  Eq.  PI.  (10th  ed.), 
See.  455. 

52.  See  cases  in  note  49  to  Sec. 
230,  ante,  p.  407. 

53.  Wright  v.  Dame,  1  Met. 
(Mass.)  237  (1840);  Pearson  v. 
Tower,  55  N.  H.  36  (1874);  Hast- 
ings V.  Belden,  55  Vt.  273  (1882); 
Post  V.  Beacon  Vacuum,  etc.,  Co., 
89  Fed.  1,  32  C.  C.  A.  151,  84  Fed. 
371,  28  C.  C.  A.  331   (1898). 

Want  of  equity  in  the  substance 
of  a  bill  and  misjoinder  of  a  cer- 
tain defendant  having  been  claimed 
in  the  original  demurrer,  the  mis- 
joinder of  other  defendants  may 
be  claimed  by  them  ore  tenus. 
Hastings  v.  Belden,  55  Vt.  273 
(1882).  On  a  general  demurrer 
for  want  of  equity  the  defendant 
may  assign  ore  tenus  the  ground  of 


want  of  jurisdiction.  Barber  v. 
Barber,  29  L.  .J.  Ch.  49.  Or  want 
of  parties.  Robinson  v.  Smith,  3 
Paige  (N.  Y.)  222,  233  (1832); 
Stillwell  V,  McNeely,  2  N.  J.  E.  305 
(1840). 

But  new  causes  if  they  can  be 
assigned  ore  toms  on  appeal 
(which  seems  doubtful  from  Som- 
erby  v.  Buntin,  118  Mass.  279 
(1875)),  cannot  be  assigned  unless 
vital  to  the  legal  merits  of  the 
plaintiff's  case,  unavoidable  by  an 
amendment.  Matthews  v.  Sonthei- 
mer,  39  Miss.  174  (1860). 

Demurrers  ore  tenus  seem  to  be 
no  longer  allowable  in  Michigan 
and  New  Jersey  practice. 

Michigan.  Schaub  v.  Welded 
Barrel  Co.,  130  Mich.  606  (1902); 
Proctor  V.  Plumer,  112  Mich.  393 
(1897);  compare  Burke  v.  Muske- 
gon Machine,  etc.,  Co.,  98  Mich. 
614   (1894). 

New  Jersey.  Barret  v.  Doughty, 
25  N.  J.  E.  379  (1874);  Maeder  v. 
Buffalo  Bills,  etc.,  Co.,  132  Fed. 
280  (1904);  compare  Acton  v. 
Shultz,  69  N.  J.  E.  6   (1905)  Still- 


DEMURRERS 


409 


not  demur  ore  tenus  unless  there  is  a  demurrer  on 
record  ^^  nor  can  he  demur  only  for  the  same  cause  as 
that  given  in  the  demurrer  on  record  and  overruled.^^  A 
demurrer  ore  tenus  must  be  for  a  cause  which  extends  to 
as  much  of  the  bill  as  the  demurrer  on  record;  ^^  so  after 
a  demurrer  to  the  whole  bill  has  been  overruled,  the 
defendant  cannot  demur  ore  tenus  as  to  part.^^  A  defend- 
ant is  not  entitled  to  costs  on  the  allowance  of  a  demurrer 
ore  tenus.^^ 

§233.  Speaking^  demurrers.  A  demurrer  must  rely 
only  on  the  facts  stated  in  the  bill.  If  it  introduces  any 
new  fact  which  is  necessary  to  support  the  demurrer,  but 
which  does  not  distinctly  appear  upon  the  face  of  bill,  it 
is  known  as  a  speaking  demurrer  and  will  be  overruled."*^ 


well  V.   McNeely,   2   N.   J.   E.   305 
(1840). 

54.  So  where  a  plea  is  filed  and 
disallowed  a  demurrer  ore  tenus 
will  not  be  allowed.  Durdant  v. 
Redman,  1  Vern.  78. 

55.  Bowman  v.  Lygon,  1  Annst. 
1,  4.  But  in  Pratt  v.  Keith,  10  Jur. 
N.  S.  305,  12  W.  R.  394,  a  demurrer 
on  record  for  want  of  parties  hav- 
ing been  overruled,  a  demurrer  ore 
tenus  describing  the  necessary  par- 
ties  was    allowed. 

56.  Law  V.  Ware,  238  111.  360 
(1909),  semble;  Marsh  v.  Wells,  89 
111.  App.  485  (1900),  semble;  Clark 
V.  Davis,  Harr.  (Mich.)  227  (1842); 
Barret  v.  Doughty,  25  N.  J.  E.  379 
(1874);  Equitable  L.  Assn.  v.  Pat- 
erson,  1  Fed.   126   (1880). 

One  cannot  demur  ore  tenus  to  a 
part  of  the  bill  which  was  not  be- 
fore made  the  subject  of  a  demur- 
rer of  record.  Pitts  v.  Short,  17 
Ves.  213,  216. 

57.  Barret  v.  Doughty,  25  N.  J. 
E.  379  (1874).  There  seems  to  be 
no  reason  or  principle  why  after  a 
demurrer  on  record  to  a  part  has 
been    overruled,   a    defendant   may 


not  demur  ore  tenus  to  the  same 
part,  and  it  was  so  held  in  Crouch 
V.  Hickin,  1  Keen  385,  389.  But 
see,  contra,  Shepherd  v.  Lloyd,  2 
Y.  &  J.  490. 

58.  Wright  v.  Dame,  1  Met. 
(Mass.)  237  (1840);  Pearson  v. 
Tower,  55  N.  H.  36  (1874).  Even 
though  he  may  not  be  obliged  to 
pay  the  costs  on  the  demurrer  of 
record  which  has  been  overruled. 

In  Post  v.  Beacon  Vacuum,  etc., 
Co.,  89  Fed.  1,  32  C.  C.  A.  151,  84 
Fed.  371,  28  C.  C.  A.  331  (1898), 
the  bill  stated  unexplained  facts 
which  injured  the  plaintiff's  case 
and  on  this  ground,  assigned  ore 
tenus  on  appeal  from  a  decision  be- 
low sustaining  the  demurrer  on 
other  grounds,  the  demurrer  was 
sustained  above;  but  it  was  held 
that  the  appellant  must  pay  the 
costs  of  the  appeal,  since  the  upper 
court  had  been  obliged  to  review 
the  decision  of  the  lower  court  on 
all  the  aspects  of  the  case. 

59.  Alabama.  Sanders  v.  Wal- 
lace, 114  Ala.  259  (1896);  Brom- 
berg  V.  Heyer,  69  Ala.  22  (1881). 


410 


EQUITY  PRACTICE 


It  is  to  be  noticed  however  that  such  uew  fact  must  be 
one  which  is  necessary  to  support  the  demurrer;  the 
introduction  of  immaterial  averments  or  of  arguments, 
though  improper,  is  mere  surphisage,  and  will  not  ren- 
der the  demurrer  bad.*^*^ 

§  234.  Whether  demurrers  are  overruled  by  plea  or 
answer.  There  is  some  conflict  of  authority  as  to 
whether  a  demurrer  is  overruled  by  a  jjlea  or  answer. 
According  to  general  chancery  practice  a  plea  or  answer 
filed  to  the  whole  bill  or  a  certain  portion  overruled  a 
demurrer  previously  filed  to  the  bill  or  the  same  portion 
thereof,  since  the  position  taken  by  both  at  the  same  time 
would  be  inconsistent.*^^    In  some  of  the  states,  as  the  foot- 


Florida.  Lindsley  v.  Mclvor,  51 
Fla.  463  (1906);  Southern  L.  I.  Co. 
V.  Lanier,  5  Fla.  110,  58  Am.  Dec. 
448    (1853). 

Michigan.  Proctor  v.  Plumer, 
112  Mich.  393  (1897). 

Mississippi.  Gray  v.  Eegan,  23 
Miss.  304   (1S52). 

New  Jersey.  Graham  v.  Spence, 
71  X.  .J.  E.  183  (190G);  Teeter  v. 
Veitch,  66  X.  J.  E.  162  (1904). 

Pennsylvania.  Pew  v.  Minor, 
216  Pa.  343  (1907);  Fitzsimmons  v. 
Lindsay,  205  Pa.  79  (1903). 

Rhode  Island.  Clark  v.  Ehode 
Island,  etc.,  Works,  24  E.  I.  307 
(1902). 

Tennessee.  Eussell  v.  State  Xat. 
Bank,  104  Tenn.  614  (1900). 

United  States.  Stewart  v.  Mas- 
terson,  131  U.  S.  151,  33  L.  ed.  114 
(1888);  Card  v.  Standard,  etc.,  Co., 
202  Fed.  351  (1913);  Star,  etc., 
Co.  V.  Klahn,  145  Fed.  834  (1906); 
O'Shaugnessy  v.  Humes,  129  Fed. 
953   (1904). 

Facts  presented  in  a  cross  bill 
cannot  be  brought  forward  for  con- 
sideration in  demurrer  to  the  origi- 


nal bill.    Foss  V.  People's,  etc.,  Co., 
241  111.  238  (1909). 

A  defendant  has  no  reason  to 
complain  if  the  court  calls  true  a 
statement  of  fact  made  in  his  de- 
murrer. Belden  v.  Blackman,  118 
Mich.  448    (1898). 

Character  of  the  parties  cannot 
be  considered  on  a  demurrer  to  a 
bill.  Kissler  &  Co.  v.  Ensley,  129 
Fed.   397    (1904). 

The  court  will  not  draw  infer- 
ences of  fact  to  sustain  a  demurrer 
if  there  are  sufficient  express  aver- 
ments to  support  the  bill.  Warfield 
V.  Fisk,  136  Mass.  219  (1884). 

A  demurrer  which  the  pleader  at- 
tempts to  sustain  by  an  averment 
of  facts  in  a  plea  or  answer  is  not 
aided  by  such  averment.  Kuypers 
V.  Church,  6  Paige  (X.  Y.)  570 
(1837). 

.  60.  Brooke  v.  Gibbons,  4  Paige 
(N.  Y.)  374  (1834);  Davies  v.  Wil- 
liams, 1  Sim.  5,  8. 

61.  In  the  following  cases  de- 
murrers were  held  to  be  overruled 
by  pleas   or  answers: 

Alabama.     Corbitt  v.  Carroll,  50 


DEMURRERS 


411 


note  shows,  this  doctrine  has  now  in  part  been  abrogated 
by  rules  or  decisions.^  ^* 


Ala.  315  (1873);  Crawford  v.  Chil- 
dress, 1  Ala.  482  (1840). 

Illinois.  French  v.  Commercial 
Nat.  Bank,  97  111.  App.  533,  aff.  199 
111.  213  (1901-2). 

Maryland.  Morton  v.  Harrison, 
111  Md.  536  (1909). 

Mississippi.  Sledge  v.  Dickson, 
81  Miss.  501  (1903);  Fieri  v. 
Shieldsboro,  42  Miss.  493  (1869). 

New  Jersey.  Goodbody  v.  Dela- 
ney,  80  N.  J.  Eq.  417  (1912);  Red- 
row  V.  Sparks,  76  N.  J.  E.  133 
(1909). 

Pennsylvania.  Stegmaier  v. 
Keystone  Coal  Co.,  232  Fa.  140 
(1911);  Appeal  of  Barbey,  119  Fa. 
413  (1888). 

Rhode  Island.  Roberts  v.  White, 
32  R.  I.  522  (1911). 

United  States.  Sage  Land,  etc., 
Co.  V.  Ripley,  192  Fed.  785  (1912); 
Bryant,  etc.,  Co.  v.  Robinson,  149 
Fed.  321,  79  C.  C.  A.  259  (1906); 
Strang  v.  Richmond,  etc.,  R.  Co., 
101  Fed.  511,  41  C.  C.  A.  474 
(1900);  Crescent  City,  etc.,  Co.  v. 
Butchers',  etc.,  Co.,  12  Fed.  225 
(1882). 

In  Bryant,  etc.,  Co.  v.  Robinson, 
149  Fed.  321,  79  C.  C.  A.  259 
(1906),  the  court  disregarded  the 
demurrer,  where  an  answer  had 
been  filed,  even  though  the  solici- 
tor for  the  adverse  party  had 
waived  the   informality. 

61a.  In  the  following  cases  the 
demurrer  was  held  not  to  be  over- 
ruled by  the  plea  or  answer: 

Florida.  McRainey  v.  Jarrell,  59 
Fla.  587  (1910);  Equity  Rules  53, 
54. 

Maine.  Smith  v.  Kelley,  56  Me. 
64  (1868);  Hartshorn  v.  Eamcs,  31 
Me.  93,  97  0849^. 


Massachusetts.  Fogg  v.  Price, 
145  Mass.  513   (1888),  semble. 

West  Virginia.  Rosset  v.  Greer, 
3  W.  Va.  1  (1868). 

United  States.  Hayes  v.  Dayton, 
8  Fed.  702,  18  Blatchf.  420  (1880), 
under  former  Federal  Equity  Rule 
37.  The  case  last  mentioned  is  dis- 
tinguished in  Bryant,  etc.,  Co.  v. 
Robinson,  149  Fed.  321,  79  C.  C. 
A.  259   (1906). 

And  see  Equity  Rules  34  of 
Pennsylvania,  21  of  Rhode  Island, 
and  18  of  Vermont. 

Where  a  demurrer  and  a  plea  or 
answer  are  filed  to  the  same  mat- 
ter, it  seems  that  if  the  court  does 
not  hold  the  demurrer  overruled  by 
the  answer,  it  will  at  least  require 
the  defendant  to  elect  between 
them.  Be  Finley,  196  Pa.  S.  140 
(1900),  semble,  Orphans'  court; 
Adams  V.  Howard,  9  Fed.  347 
(1881);  Hayes  v.  Dayton,  8  Fed. 
702,  18  Blatchf.  420   (1880). 

As  to  the  practice  where  a  de- 
murrer is  filed  in  an  answer,  see 
note  76  to  Sec.  239,  post,  p.  418. 

Leave  to  withdraw  an  answer  or 
plea  and  file  a  demurrer  may  of 
course  be  asked,  but  the  court  will 
not  grant  it  except  where  it  will 
clearly  subserve  the  interests  of 
justice.  Sanderson  v.  Sanderson, 
17  Fla.  820  (1880);  Anderson  v. 
Newman,  60  Miss.  532  (1882); 
Saunders  v.  Savage,  63  S.  W.  218 
(Tenn.  Ch.  App.  1900) ;  Ee  Finley, 
196  Pa.  140  (1900);  United  States 
V.  American  Bell  Telephone  Co.,  30 
Fed.  523   (1887). 

The  demurrer  of  one  defendant 
is  not  overruled  by  the  plea  of  a 
codefendant.  Dakin  v.  Union  Pa- 
cific R.  Co.,  5  Fed.  665   (1880).     A 


412 


EQUITY  PRACTICE 


§  235.  Demurrers  inserted  in  answers.  The  chancery- 
practice  of  many  of  the  states  permits  the  defendant  to 
insert  in  his  answer  a  defence  by  way  of  demurrer.^^ 


demurrer  is  not  overruled  by  a 
cross  bill.  Bennett  v.  Bennett,  63 
N.  J.  E.  306   (1901). 

Although  under  the  former 
United  States  rules  an  answer  over- 
ruled a  demurrer  to  the  same  por- 
tion of  the  bill,  yet  the  plaintiff 
might  waive  this  rule  of  law,  and 
would  be  held  to  do  so  in  a  case 
where  he  moved  to  strike  out  the 
answer  and  agreed  to  hearing  on 
the  demurrer.  Levee  Comm.  v. 
Tensas,  etc.,  Co.,  204  Fed.  736  (C. 
C.  A.  1913). 

62.  Alabama.  Code,  See.  3115; 
Eay  V.  Womble,  56  Ala.  32,  40 
(1876);  Crawford  v.  Childress,  I 
Ala.  482   (1840). 

Florida.  JleRainey  v.  Jarrell,  59 
Fla.  587  (1910);  G.  S.,.  See.  1871. 

Illinois.  Chicago,  etc.,  R.  Co.  v. 
Ferguson,  106  111.  App.  356  (1903). 

Maine.  Merrill  v.  Washburn,  83 
Me.  189  (1891);  Equity  Rule  14. 

Maryland.  Eq.  Rule  23;  Code, 
Art.  16,  Sec.  155. 

Massachusetts.    Eq.  Rule  13. 

Michigan.  Brassington  v.  Wal- 
dron,  143  Mich.  364  (1900). 

New  Hampshire.    Eq.  Rule  86. 

New  Jersey.  Bennett  v.  Ben- 
nett, 63  X.  J.  E.  306  (1901). 

Pennsylvania.     Eq.  Rule  37. 

Tennessee.     Code,  Sec.  6129. 

Vermont.  Holt  v.  Daniels,  61 
Vt.  89   (1887);   Equity  Rule  14. 

Virginia.  Dunn  v.  Dunn,  26 
Gratt.  291   (1875). 

West  Virginia.  Cook  v.  Dorsey, 
38  W.  Ysi.  196  (1893). 

In  Maryland,  it  seems  that  a 
general  reservation  at  the  begin- 
ning  of   an   answer   does   not   save 


the  right  to  object  to  the  jurisdic- 
tion of  the  court,  nor  is  it  equiva- 
lent to  a  general  demurrer.  O'Xeill 
V.  Cole,  4  Md.  107   (1853). 

In  Smith  v.  Blake,  96  Mich.  542 
(1893),  a  distinction  is  drawn  be- 
tween demurrers  and  demurrer 
clauses  in  answers,  and  it  is  held 
that  a  bill  will  not  be  dismissed  on 
the  hearing  on  the  demurrer  in  the 
answer  for  defects  in  the  bill  which 
could  have  been  amended,  and 
which  would  have  been  fatal  on  de- 
murrer. 

An  answer  admitting  substantial 
averments  and  denying  the  right 
to  equitable  relief  thereon  was 
held  equivalent  to  a  demurrer  in 
Bennett  v.  Bennett,  63  N.  J.  E. 
306  (1901).  But  in  Matney  v.  Rat- 
liff,  96  Va.  231  (1898),  a  statement 
in  the  answer  that  the  defendant 
reserved  "all  just  exceptions"  to 
the  bill  was  held  not  equivalent  to 
a  demurrer. 

By  the  Tennessee  code  an  an- 
swer may  include  a  demurrer  ex- 
cept on  the  ground  of  want  of  ju- 
risdiction of  subject  matter  or  per- 
son.    Sec.  6129. 

In  Alabama,  the  demurrer  may 
be  incorporated  in  the  answer  by 
amendment  at  any  time  before 
final  decree.  Harland  v.  Person, 
93  Ala.  273  (1890);  Reese  v. 
Bromberg,  88  Ala.  619  (1889); 
Shaw  v.  Lindsey,  60  Ala.  344 
(1877). 

A  demurrer  may  be  included  in 
the  answer  by  filing  it  as  a  sepa- 
rate paper  at  the  same  time  with 
the  answer.  Head  v.  Lightfoot,  61 
Fla.  608   (1911). 


DEMURRERS  413 

Where  such  is  the  case,  the  demurrer  in  the  answer  of 
course  is  not  overruled  by  the  rest  of  the  answer,  although 
it  is  usually  heard  and  disposed  of  before  the  rest  of  the 
answer.*^^ 

§  236.  Form  of  demurrers.  A  demurrer  consists  of 
five  parts:  •'^  the  title,  the  protestation  clause,  the  speci- 
fication of  extent,  the  assignment  of  causes,  and  the 
prayer.  A  demurrer  should  be  headed  with  the  title  of 
the  cause  in  the  same  manner  as  a  bill,  and  described  as 
''The  demurrer  of  A.  B.  to  the  bill  of  complaint  of  E.  F." 
If  it  is  accompanied  by  a  plea  or  by  an  answer  it  should 
be  called  "The  demurrer  and  plea"  or  "demurrer  and 
answer"  as  the  case  may  be.*^^ 

Although  the  effect  of  a  demurrer  is  to  confess  the 
matters  of  fact  stated  in  the  bill  to  be  true,  nevertheless 
in  general  chancery  practice  it  begins  by  a  general  pro- 
testation against  the  truth  of  the  matters  contained  in 
the  bill,  a  practice  borrowed  from  the  common  law,  and 
probably  intended  to  avoid  conclusion  in  another  suit  or 
in  the  suit  in  hand  in  case  the  demurrer  should  be  over- 
ruled.^*' 


63.  See  Sec.  239,  post,  p.  416,  and  causes  of  demurrer  shall  be  speci- 
notes  75,  76,  post,  p.  418,  as  to  pro-  fied;    but    do    not    necessarily    do 
cedure  in  replying  to,  hearing  and  away  with  general  demurrers.     See 
disposing  of  answers  which  include  note  48,  ante,  p.  406. 
demurrers.  65.  Dan.   Ch.  Pr.   (6th  Am.  ed.), 

64.  See  the  collection  of  forms  p.  585.  Where  it  is  to  an  amended 
in  the  third  volume  for  forms  of  bill,  it  need  not  be  expressed  in 
demurrer  in  use  in  the  various  ju-  the  title  to  be  a  demurrer  to  the 
risdictions;  and  see  discussion  of  original  and  amended  bill,  but  a 
form  of  demurrers  in  Taylor  v.  demurrer  to  the  amended  bill  will 
Holmes,   14  Fed.   498    (1882).     The  be  sufficient. 

statutes    or    rules    often    give    the  66.  Dan.   Ch.   Pr.   (6th  Am.   ed.), 

form  of  demurrer.     See  Maryland,  p.   585;    McCarter   v.   United,   etc., 

Code,   Art.   16,   Sec.   149,   Eq.   Rule  Co.,  75  N.  J.  E.   158   (1908),     The 

18;   Michigan,  Eq.  Rule  9;   Missis-  protestation  clause  has  no  practical 

sippi,  Code,  Sec.  581;   New  Hamp-  effect  today,  however,  and  has  been 

shire,   Eq.   Rule   86;   Pennsylvania,  held  to  be  but  a  useless  form.   Reed 

Eq.   Rule   32;    Virginia,   Code,   Sec.  v.  Cross,   14   Me.   2.59    (1837).     By 

3271.    These  forms  require  that  the  the  practice  in  many  of  the  juris- 


414 


EQUITY  PRACTICE 


After  the  protestation  clause,  the  demurrer,  when  it  is 
not  to  the  whole  bill,  proceeds  to  point  out  the  parts  of  the 
bill  to  which  it  is  intended  to  apply,  and  then  to  assign 
the  grounds  of  demurrer,  either  want  of  equity  or  special 
grounds;  closing  with  a  prayer  for  the  judgment  of  the 
court  as  to  whether  the  defendants  shall  be  compelled  to 
make  any  further  or  other  answer,  and  for  reasonable 
costs.^^ 

§237.  Si^ature  with  certificate  of  counsel.  A 
demurrer  must  be  signed  by  counsel  but  need  not  be 
signed  by  the  defendant.  No  oath  is  required  as  to  the 
truth  of  the  contents,  since  it  asserts  no  matter  of  fact."* 
The  rules  generally  provide  that  a  certificate  of  counsel 
must  be  filed,  and  sometimes  also  a  certificate  of  defend- 
ant, stating  that  the  demurrer  was  filed  in  good  faith 
and  not  for  purposes  of  delay,  or  that  it  is  well  founded 
in  point  of  law.*^^ 


dictions,  these  formal  clauses  are 
now  obsolete.  See  the  forms  of  de- 
murrer given  in  the  statutes  and 
rules  cited  in  footnote  64,  <ante, 
and  the  express  provisions  of  Mass. 
E.  L.,  Ch.  159,  Sec.  13. 

67.  The  ground  of  demurrer 
should  be  so  stated  as  to  apprise 
the  court  of  the  real  objection, 
and  if  this  is  not  done,  the  party 
demurring  can  claim  nothing.  Kel- 
logg V.  Hamilton,  43  Mich.  269 
(1880).  And  see  cases  in  note  48 
to  Sec.  230,  ante,  p.  406. 

68.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  590,  citing  Ld.  Red.  208. 

69.  Delaware.     Eq.  Rule  30. 
Florida.     Eq.  Rule  48. 
Maine.     Eq.  Rule  15. 
Maryland.      Code,    Art.    16,   Sec. 

147;  Eq.  Rule  18. 

Massachusetts.  R.  L.,  Ch.  159, 
Sec.   13. 

Michigan.     Eq.  Rule  4. 

Mississippi.     Code,  Sec.  582. 


New  Jersey.  Comp.  St.,  "Chanc- 
ery," Sec.  22. 

Pennsylvania.     Eq.  Rule  32. 

Rhode  Island.    Eq.  Rule  19. 

Vermont.    Eq.  Rule  13. 

United  States.  As  has  been 
stated  above,  note  1,  ante,  p.  390, 
demurrers  are  now  obsolete  in  Fed- 
eral practice,  their  place  being 
taken  by  motions.  To  such  mo- 
tions, however,  apply  the  pro- 
visions of  the  new  Federal  Equity 
Rule  24,  that  every  pleading  must 
be  signed  individually  by  one  or 
more  solicitors  of  record,  and  such 
signature  shall  be  considered  as  a 
certificate  by  such  solicitor  that  he 
has  read  the  pleading  so  signed  by 
him;  that  upon  the  instructions 
laid  before  him  regarding  the  case 
there  is  good  ground  for  the  same; 
that  no  scandalous  matter  is  in- 
serted in  the  pleading  and  that  it 
is   not   interposed  for  delay. 

The  certificate  of  counsel  may  be 


DEMURRERS 


415 


§  238.  Filing  demurrers.  After  a  demurrer  is  drawn, 
signed  and  certified,  it  must  be  filed  within  the  time  lim- 
ited by  the  rules  '^°  after  the  time  for  appearance  has 
elapsed,  or  within  the  time  ordered  by  the  court  after 


corrected  by  amemlment  nunc  ino 
tunc.  Atlantic  Dynamite  Co.  v. 
Eager,  200  Fed.  1002   (1912). 

70.  Alabama.  Within  thirty  days 
after  service,  after  period  specified 
by  an  order  of  publication  duly 
perfected,  or  at  the  expiration  of 
any  extended  time  allowed  by 
court.     Code,  See.   3107. 

Delaware.  First  Monday  of  next 
month  after  return  day  of  sub- 
poena. Eq.  Eule  25;  Laws  of  Del., 
Vol.  17,  No.  215. 

Florida.  Should  be  filed  on  next 
rule  day  after  appearance  entered, 
but  may  be  filed  at  any  time  before 
a  decree  pro  confesso  or  afterwards 
by  leave  of  court.  Eq.  Eules  44, 
49;  G.  S.,  Sec.  1870. 

Illinois.  On  return  day  of  sum- 
mons but  if  summons  not  served 
ten  days  before  return  day,  then 
at  first  day  of  next  term, — but 
court  may  extend  the  time.  J.  & 
A.,  1896;  Hurd's  St.,  Ch.  22,  Sec. 
16. 

Maine.  In  thirty  days  after  ap- 
pearance or  within  time  allowed  by 
the  court  if  the  court  for  cause 
extends  the  time.  E.  S.,  Ch.  79, 
Sec.   17;   Laws  of  1911,  Ch.  25. 

Maryland.  Within  twenty  days 
after  appearance  or  at  any  time  be- 
fore pro  confesso,  if  court  extends 
the  time.  -  Code,  Art.  16,  Sees.  139, 
140;    Eq.   Eules   11,   12. 

Massachusetts.  In  one  month 
after  appearance  or  at  any  time  be- 
fore pro  confesso  or  afterwards  by 
leave  of  court.     Eq.  Eules  8,  9. 

Michigan.  Within  fifteen  days 
after    receiving    copy    of    the    bill; 


the  time  may  be  extended  for 
cause.     Eq.  Eules  5,  6. 

Mississippi.  On  or  before  first 
day  of  term  if  process  returnable 
to  a  regular  term;  if  returnable  in 
vacation  then  on  or  before  next 
rule  day, — but  court  may  extend 
the  time.     Code,  Sees.  600,  601. 

New  Hampshire.  Within  two 
months  after  service,  but  time  may 
be  extended  for  cause.  Eq.  Eule 
91. 

New  Jersey.  In  twenty  days 
from  return  day  of  subpoena  unless 
further  time  is  granted.  Comp.  St., 
"Chancery,"  Sees.  20,  22,  23  (as 
amended,   1913). 

Pennsylvania.  In  thirty  days 
after  service  of  notice  of  bill  filed, 
but  may  be  filed  at  any  time  be- 
fore pro  confesso  or  afterwards  by 
leave  of  court.  Eq.  Eules  6,  29, 
31. 

Rhode  Island.  Within  thirty 
days  after  return  day  or  within 
such  further  time  as  may  be  al- 
lowed on  motion.  G.  L.,  Ch.  289, 
Sees.  6,  10. 

Tennessee.  (No  express  pro- 
vision.) 

Vermont.  Within  ten  days  after 
time  for  entering  appearance  has 
expired.     Eq.  Eule  15. 

Virginia  and  West  Virginia. 
(No  express  provisions.) 

United  States.  No  limitation  in 
the  new  Federal  Equity  Eules  ex- 
cept Eule  29  that  every  point  of 
law  raised  by  motion  (in  lieu  of 
demurrer  under  the  new  rules)  may 
be  called  up  and  disposed  of  before 
final   hearing   at   the   discretion   of 


416  EQUITY  PRACTICE 

opening  a  decree  pro  confesso  for  want  of  such  appear- 
ance; but  for  good  cause  shown  the  court  may  enlarge 
the  time  therefor.  When  a  demurrer  has  been  thus  filed, 
notice  of  the  fact  should  be  given  to  the  jDlaintiff 's  coun- 
sel, together  with  a  copy  of  the  demurrer."^  This  is  not 
usually  required  either  by  statute  or  the  chancery  rules, 
but  is  good  practice,  since  it  is  not  customary  for  equity 
dockets  to  be  as  closely  watched  by  counsel  as  the  law 
dockets.  In  default  of  any  defence  either  by  demurrer, 
plea  or  answer,  the  bill  can  be  taken  pro  confesso  as  a 
matter  or  course,  on  motion  of  the  plaintiff;  but  such 
decree  may  be  opened  on  motion  of  the  defendant  within 
a  time  fixed  by  the  rules  or  decisions  in  the  various 
states."^ 

Any  formal  defect  in  a  demurrer  may  be  taken  advan- 
tage of  by  motion  to  strike  the  demurrer  from  the  files."^ 

§  239.  Setting  cause  for  hearing  on  demurrer. 
Demurrers  in  equity  do  not  require  to  be  joined  by  the 
plaintiff  in  order  to  set  them  for  hearing.  The  statutes 
or  chancery  rules  usually  provide  that  when  a  demurrer 
is  filed,  the  court  upon  motion  of  a  party  may  set  the  cause 
for  hearing  upon  bill  and  demurrer  within  a  certain  time, 
or  that  the  cause  stands  for  such  hearing  automatically 
at  a  certain  time.""* 

the  court.    See  Bogert  v.  Southern  accomplished  by  motion  to  take  the 

Pacific  Co.,  211  Fed.  776  (1914).  bill    pro    confesso.      Sheffield    Fur- 

71.  In  Florida  this  is  not  re-  nace  Co.  v.  Witherow,  149  U.  S. 
quired  unless  specially  ordered  by  ^74,  37  L.  ed.  853  (1893).  These 
the  judge.     Eq.  Rule's.     In  Dela-  ^'^ses  were  under  the  former  Fed- 

-  . ,      ,  V,  eral   Equity   Rules,  but   are   in   ac- 

ware  a  copy  of  the  demurrer,  when                            .  ,  ,       , 

,    ,    .               ,   ,       ,,            .  ,  cordance     with  general     chancery 
filed,  IS  served  bv  the  register  on 

,    .    '      ^     ^  ,    „,^  practice, 

plaintiff's  solicitor.    Eq.  Rule  30.  ^.     .,  a.  ^  tx 

^                                              „       ^               74.  Alabama.  Demurrers  are  to 

72.  See   Chapter  IX,  "Pro   Con-  ,       ■,.           ,      -,  .,          ,,.          . 
1^.  ^cc          i.             ,  Y)Q   disposed   of  on  the   calling   of 

fesso,"  ante,  pp.  370  et  seq.  ^j^^    ^^^^      ^^    ^^j^    73      q^   ^^^^ 

73.  Bryant  Bros.  Co.  v.  Robin-  ^j^^g,  jj^^j^g  ^^^^  ^^^^  ^^  heard  in 
son,  149  Fed.  321,  79  C.  C.  A.  259      vacation.     Eq.  Rule   74. 

(1906);    American   Steel,   etc.,   Co.  Delaware.     Demurrer  stands  for 

V.  Wire  Drawers,  etc..  Union,  90  hearing  at  next  term  unless  other- 
Fed.  598  (1898).     This  may  also  be      wise  ordered.     Eq.  Rule  30. 


DEMURRERS 


417 


Where  a  demurrer  is  inserted  in  or  filed  with  an  answer, 
the  demurrer  is  usually  disposed  of  first.  The  demurrer 
may  usually  be  set  for  hearing  separately,  prior  to  hear- 
ing on  the  issues  presented  by  the  answer,  and  reply  to 
and  hearing  of  the  rest  of  the  answer  may  await  the 
decision  on  the  demurrer;  in  which  case  if  the  demurrer 
is  sustained,  the  answer  becomes  immaterial  unless  1;he 
bill  be  amended,  but  if  it  is  overruled,  the  case  goes  to 
hearing  on  the  allegations  in  the  answer:  but  in  other 
cases  the  demurrer  is  argued  at  the  final  hearing,  prior 
to  the  offering  of  proofs  on  the  issues  in  the  answer;  in 
which  cases  decision  on  the  demurrer  may  be  reserved,  or 


Florida.  Bill  may  be  dismissed 
unless  plaintiff  sets  demurrer  for 
hearing  by  the  next  rule  day.  G. 
S.,  Sec.  1876;   Eq.  Eule  50. 

Maine.  The  court  on  motion  of 
either  party  may  set  the  cause  for 
hearing  upon  bill  and  demurrer  at 
any  time.  Time  fixed  for  hearing 
may  be  extended  for  good  cause. 
E.  S.,  Ch.  79,  Sec.  19,  amended  by 
Acts  of  1909,  Ch.  170;  Acts  of 
1911,  Ch.  25;  Eq.  Eule  22. 

Maryland.  Unless  the  plaintiff 
sets  the  demurrer  for  argument 
within  ten  days  after  it  is  filed,  the 
defendant  may  set  it  for  argument 
on  five  days'  notice.  Code,  Art. 
16,  Sees.  150,  151;  Eq.  Eules  19,  20. 

Massachusetts.  Unless  the  plain- 
tiff sets  the  demurrer  for  argument 
within  fifteen  days  after  it  is  filed, 
the  bill  may  be  dismissed  with 
costs,  on  motion,  unless  good  cause 
appears  to  the  contrary.  Eq.  Eule 
10. 

Michigan.  Either  party  may  no- 
tice a  demurrer  for  argument  at 
the  next  term  of  court.  Eq. 
Eule  9. 

Mississippi.      Unless      demurrant 
sets  demurrer  for  hearing  at  oncw, 
Whitehouse  E.  P.  Vol.  I — 27 


if  filed  in  term  time,  or  at  the  next 
term,  if  filed  in  vacation,  it  is 
overruled  as  of  course.  Code,  Sec. 
583.  Pro  confesso  may  then  be 
taken  and  decree  for  plaintiff. 
Memphis,  etc.,  Co.  v.  Owens,  60 
Miss.  227   (1882). 

New  Jersey.  Within  ten  days 
after  filing  of  demurrer  the  demur- 
rant shall  set  the  cause  for  argu- 
ment at  the  next  term.  Comp.  St., 
"Chancery,"  Sec.  20. 

Pennsylvania.  Unless  plaintiff 
sets  demurrer  for  argument  within 
ten  days  after  service  of  the  same, 
defendant  may  set  it  for  argument 
on  five  days'  notice.     Eq.  Eule  33. 

Tennessee.  The  plaintiff  may 
set  the  demurrer  for  argument  and 
the  demurrer  shall  be  set  for  argu- 
ment at  the  first  term.  Code,  Sees. 
6203,  6204. 

West  Virginia.  The  plaintiff  may 
set  the  demurrer  for  argument. 
Code  1913,  Sec.  4784. 

United  States.  Motions  to  dis- 
miss may  be  set  for  hearing  by 
either  party  on  five  days'  notice,  or 
may  be  called  up  by  the  court  be- 
fore final  hearing.     Eq.  Eule  29. 


418 


EQUITY  PRACTICE 


it  may  be  overruled  "pro  forma,"  "^  and  the  proofs  may 
be  submitted,  in  order  that  if  the  proofs  are  inadequate 
to  support  the  bill  as  it  stands,  the  court  may  not  decide 
as  an  idle  formality  on  the  merits  of  the  demurrerJ*^  If 
proofs  are  introduced  before  argument  on  the  demurrer, 
the  demurrer  is  regarded  as  waived.''^ 

§  240.  Effect  of  sustaining  demurrer.  An  order  sus- 
taining a  demurrer  is  not  a  final  decree  unless  in  terms 
or  effect  it  dismisses  the  bill  and  puts  the  case  out  of 
court."^    But  when  a  final  decree  is  made  upon  a  demur- 


75.  Virginia  v.  "West  Virginia, 
206  U.  S.  290,  51  L.  ed.  1068  (1907) ; 
Kansas  v.  Colorado,  185  U.  S.  125, 
46  L.  ed.  838  (1902) ;  Smith  v.  Bow- 
ker,  etc.,  Co.,  199  Fed.  985  (1912); 
Snyder  v.  DeForest  W.  Co.,  154 
Fed.  142  (1907);  Eankin  v.  Miller, 
l.-^O  Fed.  229  (1904).  These  cases 
were  under  the  former  Federal 
Equity  Eules  but  illustrate  the 
general  chancery  practice  which 
will  doubtless  be  followed  under 
the  new  Federal  Equity  Rules  by 
which  motions  to  dismiss  are  sub- 
stituted for  demurrers. 

76.  For  the  practice  in  various 
jurisdictions  where  demurrers  are 
filed  with  or  as  a  part  of  answers, 
see  the  following  authorities: 

Alabama.     Eq.  Rules  71,  73,  75. 

Florida.  McRainey  v.  Jarrell,  59 
Fla.  587  (1910). 

Illinois.  Chicago,  etc.,  R.  Co.  v. 
Ferguson,  106  111.  App.  356  (1903). 

Maine.  Smith  v.  Kelley,  56  Me. 
64   (1868). 

New  Jersey.  Goodbody  v.  Dela- 
ney,  80  N.  J.  Eq.  417;  Reed  v.  Cum- 
berland, etc.,  Co.,  36  N.  J.  E.  146 
(1882);  Comp.  St.,  "Chancery," 
Sec.  24. 

Tennessee.  Kyle  v.  Riley,  58 
Tenn.  230  (1872);  Robertson  v.  Mc- 
Collum,   60   S.   W.    170    (Tenn.   Ch. 


App.  1900);  Harding  v.  Egin,  2 
Tenn.  Ch.   39    (1874). 

Vermont.  Fairbanks  v.  Keiser, 
84  Atl.  610  {\t.  1912);  Congrega- 
tional Church  V.  Cutler,  76  A't.  338 
(1904);  Enright  v.  Amsden,  70  Vt. 
183  (1897);  Holt  v.  Daniels,  61  Vt. 
89  (1887);  McLane  v.  Johnson,  59 
Vt.  237   (1886). 

In  Michigan  there  is  no  separate 
hearing  on  a  demurrer  clause  in  an 
answer.  Titus  v.  Chippewa  C.  J., 
168  Mich.  507  (1912);  Brassington 
V.  "Waldron,  143  Mich.  364  (1906); 
Zabel  V.  Hirshman,  68  Mich.  270 
(1888);  Lamb  v.  Jeffrey,  41  Mich. 
719  (1879).  But  on  the  other  hand, 
in  the  Federal  courts  it  seems  that 
even  by  consent  the  court  could 
not  on  the  hearing  of  the  demurrer 
consider  evidence.  Stratton  v. 
Dewey,  79  Fed.  32,  24  C.  C.  A.  435 
(1897).  This  decision  would  prob- 
ably be  equally  applicable  to  the 
motions  substituted  for  demurrers 
by  the  new  equity  rules. 

77.  See  the  cases  in  note  76, 
nnte. 

The  failure  of  a  defendant  to  be 
present  at  every  stage  in  the 
cause  is  not  a  waiver  of  his  demur- 
rer. Joest  V.  Adel,  209  111.  432 
(1904). 

78.  Lide  v.  Park,  132  Ala.  222 
(1901);  Rose  v.  Gibson,  71  Ala.  35 


DEMURRERS 


419 


rer  involving  the  merits  of  the  cause,  it  is  a  final  deter- 
mination of  the  rights  of  the  parties,  which  can  be  pleaded 
in  bar  to  another  suit  for  the  same  cause  of  actionJ^ 
When  the  demurrer  is  for  defects  of  form,  a  final  decree 
dismissing  it  should  be  without  prejudice,  and  is  not  a 
bar  to  a  new  bill.^^  Whatever  may  have  been  the  former 
practice  ^^  the  allowance  of  a  demurrer  does  not  in  modern 
practice  prevent  subsequent  proceedings,  whether  it  be 
to  part  or  the  whole  of  the  bill.  When  a  demurrer  has 
been  sustained  it  is  always  within  the  discretion  of  the 
court  to  allow  amendment  of  the"  bill,  with  or  without 
terms,  at  any  time  before  final  decree ;  ^-  and  in  practice, 
the  court  usually  allows  the  plaintiff  a  reasonable  time  ^^ 
to  move  for  leave  to  amend,  if  an  amendment  is  desired. 
Leave  should  be  reserved  by  the  court  of  its  own  accord, 
where  it  appears  that  the  plaintiff  by  amending  can  cure 
the  demurrable  defects.^^     In  such  case  leave  should  be 


(1881);   Forbes  v.  Tuckerman,  115 
Mass.   115,   119    (1874). 

79.  Herstein  v.  Walker,  90  Ala. 
477  (1889),  semble;  Corrothers  v. 
Sargent,  20  W.  Va.  351  (1882); 
Alley  V.  Nott,  111  U.  S.  472,  28  L. 
ed.  491  (1884);  Fowler  v.  Osgood, 
141  Fed.  20,  72  C.  C.  A.  276,  4  L.  E. 
A.  (N.  S.)  824  (1905),  semble. 

80.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  598.  So  also  of  a  bill  dismissed 
after  demurrer  sustained  for  lack 
of  parties.  Buchanan  Co.  v. 
Smyth's  Heirs,  80  S.  E.  794  (Va. 
1913).  When  the  plaintiff  declines 
to  amend  for  defects  in  form,  the 
decree  should  dismiss  the  bill  with- 
out prejudice.  Alexander  v.  Moye, 
38  Miss.  640   (1860). 

81.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  597,  citing  Smith  v.  Barnes,  1 
Dick.  67;  Watkins  v.  Bush,  2  Dick. 
701. 

82.  See  Chapter  XVIT  (' '  Amend- 
ments"), Sec.  308,  i>ost,  p.  527. 


83.  Bank  v.  Stevenson,  7  Allen 
(Mass.)  489  (1863);  Crease  v.  Bab- 
cock,  10  Mete.  (Mass.)  529  (1846); 
Allis  Co.  V.  Withlacoochee  Co.,  105 
Fed.  680,  44  C.  C.  A.  673  (1901); 
Boston,  etc.,  R.  Co.  v.  Parr,  98 
Fed.  483    (1899). 

84.  Illinois.  Barnard  v,  Cush- 
man,  35  111.  451  (1864).    . 

Maryland.  Fooks  v.  Purnell,  101 
Md.  321,  61  Atl.  582  (1905); 
Davis  V.  Clabaugh,  30  Md.  508 
(1869). 

Michigan.  Bigelow  v.  Sanford, 
98  Mich.  657  (1894). 

Mississippi.  Barber  v.  Armi- 
stead,  82  Miss.  788  (1903);  Hiller 
V.  Cotton,  48  Miss.  593  (1873). 

Tennessee.  Lincoln  v.  Purcell, 
39  Tenn.  143   (1858). 

Virginia.  Tidball  v.  Shenan- 
doah Nat.  Bank,  98  Va.  768  (1900). 

West  Virginia.  Morgan  v.  Mor- 
gan, 42  W.  Va.  542  (1896);  Shonk 
V.  Knight,  12  W.  Va.  667  (1878). 


420 


EQUITY  PRACTICE 


moved  for  within  said  time,  and  the  proposed  amend- 
ments presented  to  the  court  for  examination  and 
approval.®^ 

If,  however,  the  plaintiff  declines  to  amend  and  allows 
final  decree  to  be  entered,  takes  an  appeal,  and  the  demur- 
rer is  sustained,  amendments  will  not  be  allowed  except 
upon  terms,  if  at  all.^^ 

Leave  to  amend  will  be  granted  in  the  case  of  demur- 
rers sustained  either  for  a  defect  in  form  or  for  want  of 
equity,  for  the  purpose  respectively  of  supplying  the 
defect  or  of  alleging  new  or  additional  grounds  for  the 
equitable  relief  sought.^"    Amendments  to  supply  missing 


United  States.  Globe-Wernicke 
Co.  V.  Fred  Macey  Co.,  119  Fed.  696, 
56  C.  C.  A.  304  (1902);  Laut  v. 
Manley,  75  Fed.  627,  21  C.  C.  A. 
457,  reversing  71  Fed.  7  (1896). 

But  in  some  cases  the  courts 
have  seemed  to  indicate  that  un- 
less the  plaintiff  asks  for  leave  to 
amend,  the  bill  will  "be  dismissed, 
on  sustaining  the  demurrer. 

Illinois.      McDowell   v.    Cochran, 

II  111.  31    (1849). 

Maryland.      Reeder  v.   Lanahan, 

III  Md.   372   (1909). 

Michigan.  Aldine,  etc.,  Co.  v. 
Phillips,  118  Mich.  162,  42  L.  E.  A. 
531    (1898). 

Mississippi.  Alexander  v.  Moye. 
38  Miss.  640   (I860). 

United  States.  Mercantile  Xat. 
Bank  v.  Carpenter,  11  Otto  567,  25 
L.  ed.  815  (1879). 

But  it  seems  that  where  the  bill 
has  been  dismissed  for  failure  to 
ask  leave  to  amend,  the  court  at 
the  same  term  may  set  aside  the 
decree  and  permit  amendment. 
Crowder  v.  Turney,  43  Tenn.  551 
(1866).  The  same  case  states  that 
when  a  cause  of  demurrer  can  be 
removed  by  amendment,  the  court 


may  allow  the  amendment  without 
deciding  the  demurrer. 

Amending  the  bill  after  demur- 
rer is  sustained  waives  the  right  to 
appeal  from  the  sustaining  of  the 
demurrer.  Lookout  Bank  v.  Sou- 
song,  90  Tenn.  590  (1891). 

85.  Campbell  v.  Powers,  37  111. 
App.  308  (1890);  Hewett  v.  Adams, 
50  Me.  271    (1862). 

86.  McKay  v.  McKay,  28  W.  Va. 
514  (1886);  Orendorff  v.  Budlong, 
12  Fed.  24   (1882),  semble. 

87.  Illinois.  Barnard  v.  Cush- 
man,  35  111.  451   (1864). 

Maine.  York  v.  Murphy,  91  Me. 
320    (1898). 

Maryland.  Emerson  v.  Gaither, 
]03  Md.  564,  8  L.  It.  A.  (N.  S.)  738 
(1906). 

Mississippi.  Bell  v.  Clark,  71 
Miss.  603    (1893). 

New  Hampshire.  City  v.  Hodge, 
73  X.'H.  617   (1906). 

New  Jersey.  Olden  v.  Hubbard, 
34  X.  J.  E.  85  (1881);  Wright  v. 
Wright,  8  N.  .J.  E.  143  (1849). 

West  Virginia.  Morgan  v.  Mor- 
gan, 42  W.  Va.  542  (1896);  Shonk 
V.  Knight,  12  W.  Va.  667  (1878). 

United      States.        Hubbard      v. 


DEMURRERS 


421 


parties  after  demurrer  sustained  on  the  ground  of  their 
absence,  are  allowed  almost  as  a  matter  of  course.**^*  But 
where  a  demurrer  going  to  the  merits  of  the  whole  bill 
is  sustained  for  want  of  equity,  an  amendment  should  not 
be  allowed  so  as  to  make  a  new  cause  with  new  parties.*^** 
Leave  to  amend  will  not  be  refused  and  the  bill  dismissed 
unless  the  defects  cannot  be  amended,^^  or  the  defendant 
declines  to  amend,  or  an  amendment  will  not  promote  the 
ends  of  justice  in  the  case.-"* 

§  241.  Effect  of  overruling  demurrer.  In  equity,  the 
overruling  of  a  demurrer  is  never  followed  by  a  decree 
making  a  final  disposition  of  the  case;  the  order  is  that 
the  party  demurring  answer  further.^  ^     In  many  states, 


Manhattan  Trust  Co.,  87  Fed.  51, 
30  C.  C.  A.  520  (1898);  Laut  v. 
Manley,  75  Fed.  627,  21  C.  C.  A. 
457,  reversing  71  Fed.  7   (1896). 

87a,  Florida,  Betton  v.  Wil- 
liams, 4  Fla.  11  (1851). 

Maryland,  Davis  v.  Clabaugh, 
.30  Md.  508    (1869). 

Massachusetts.  Eustis  Mfg.  Co. 
v.  ,Saeo  Brick  Co.,  198  Mass.  212 
(1908). 

Michigan.  Burk  v.  Muskegon 
Machine,  etc.,  Co.,  98  Mich.  614 
(1894). 

New  Jersey,  Knikel  v.  Spitz,  74 
N.  J.  E.  581   (1908). 

Virginia.  Tidball  v.  Shenan- 
doah Nat.  Bank,  98  Va.  768  (1900). 

West  Virginia.  Pappenheimer  v. 
Roberts,  24  W.  Va.  702  (1884). 

88.  March  v.  Mayer,  85  111.  177 
(1877). 

89.  Illinois,  Foss  v.  People, 
etc.,  Co.,  241  111.  238   (1909). 

Maryland,  Fooks  v.  Purnell,  101 
Md.   ;521    (1905). 

Michigan.  Cheever  v.  Ellis,  144 
Mich.  477,  11  L.  R.  A.  (N.  S.)  296 
(1906). 

New  Jersey.     Middlesex  Transp. 


Co.    V.    Penna.    R.    Co.,    89   Atl.    45 

(i9i:i). 

West  Virginia,  Cecil  v.  Karnes, 
61  W.  Va.  543  (1907);  Parker  v. 
Knisely,  36  W.  Va.  794  (1892). 

United  States.  Post  v.  Beacon, 
etc.,  Co.,  89  Fed.  1,  32  C.  C.  A.  151 
(1898). 

90.  Marvel  v.  Cobb,  200  Mass. 
293  (1908);  Mercantile  Nat.  Bank 
v.  Carpenter,  11  Otto  567,  25  L. 
ed.  815  (1879);  Young  v.  Mercan- 
tile Trust  Co.,  140  Fed.  61,  aff.  145 
Fed.  39,  75  C.  C.  A.  264  (1905-6); 
Dowell  V.  Applcgate,  8  Fed.  698 
(1881). 

Where  one  defendant  success- 
fully maintains  a  demurrer  on  a 
ground  going  to  the  essence  of  the 
bill  and  equally  applical)le  to  other 
defendants  who  have  not  appeared, 
the  bill  will  be  dismissed  as  to  all. 
Griffiths  V.  Griffiths,  198  III.  632 
(1902). 

See  cases  in  note  84,  ante,  p.  419, 
as  to  whether  leave  to  amend  will 
be  reserved  by  the  court  of  its  own 
accord. 

91.  Florida.  Answer  to  be  filed 
by  the  next  rule  day  or  within  such 


422  EQUITY  PRACTICE 

however,   a   second   demurrer   cannot   be   filed   on   the 


other  period  as  the  court  fixes.  Eq. 
Rule  51.  Under  this  rule  it  is  error 
to  enter  pro  confesso  immediately 
on  overruling  demurrer.  Dennard 
V.  Monroe,  63  So.  428  (Fla.  1913). 
See  also  Myers  v.  McGahagan,  26 
Fla,  303  (1890). 

Illinois.  Miller  v.  Davidson,  8 
111.  518   (1846). 

Maine,  R.  R.  Co.  v.  R.  R.  Co.,  65 
Me.  122  (1876). 

Maryland.  Unless  court  is  satis- 
fied demurrer  was  filed  for  vexa- 
tion and  delay,  the  defendant  is  to 
answer  at  such  time  as  he  reason- 
ably can;  but  in  case  of  other  de- 
murrers pro  confesso  is  to  be  en- 
tered at  once.  Code,  Art,  16,  Sec. 
153;  Eq.  Rule  22. 

Michigan.  Equity  Rule  9.  See 
also  Creasey  v.  St.  George's  So- 
ciety, 34  Mich.  51-  (1876);  Eq. 
Rule  4. 

Mississippi.  Upon  overruling  de- 
murrer, defendant  should  answer 
within  such  reasonable  time  as  the 
court  may  require;  but  answer  may 
be  refused  to  be  filed  during  the 
same  term,  and  should  be  where  de- 
murrer was  merely  for  delay.  Code, 
Sec.  601. 

New  Jersey.  Upon  overruling  a 
demurrer  filed  frivolously  or  for 
delay,  no  extension  of  time  to  an- 
swer is  to  be  given  except  when 
absolutely  necessary  in  order  to 
secure  justice.  Upon  overruling 
other  demurrers,  no  other  plea  or 
demurrer  is  to  be  received,  but  an- 
swer is  to  be  filed  within  twenty 
days  after  demurrer  overruled. 
Comp.  St.,  "Chancery,"  Sees.  21, 
23.  As  to  costs,  see  Sec.  23.  See 
also  Vanderbeck  v.  Perry,  30  N.  J. 
E.  78  (1878). 


Pennsylvania.  If  a  demurrer  was 
filed  for  vexation  and  delay,  the 
defendant  must  answer  upon  its 
being  overruled  as  soon  as  he  rea- 
sonably can,     Eq.  Rule  36, 

Tennessee,  On  demurrer  over- 
ruled, defendant  should  answer  by 
next  rule  day.  Code,  Sec.  6205. 
See  also  Battle  v.  Street,  85  Tenn. 
282   (1886). 

Virginia,  On  demurrer  over- 
ruled, defendant  should  answer 
forthwith.     Code,  Sec.  3273. 

West  Virginia.  On  demurrer 
overruled,  defendant  shall  be  ruled 
to  answer.  Code,  Sec.  4784,  See 
also  Billingsley  v,  Manear,  47  W, 
Va.   785    (1900), 

Contra.  By  Vermont  Eq,  Rule 
17  the  bill  should  be  taken  pro 
confesso   upon   demurrer   overruled. 

On  sustaining  a  demurrer  to  a 
part  of  the  bill  and  at  the  same 
time  overruling  a  demurrer  to  the 
whole  bill,  the  proper  decree  is  to 
dismiss  so  much  of  the  bill  as  re- 
lates to  the  defective  matters  and 
order  the  defendant  to  answer  to 
the  rest.  Giant  Powder  Co,  v, 
California  Powder  Co.,  98  U.  S. 
126,  25  L,  ed,  77  (1878), 

Leave  to  withdraw  demurrer  and 
make  an  answer  was  refused  in 
Bailey  v.  Holden,  50  Vt.  14  (1877), 
because  the  defendant  had  elected 
to  go  to  the  upper  court  on  the  de- 
murrer, instead  of  demurring  in  his 
answer. 

On  overruling  a  demurrer  to  a 
bill  of  revivor,  instead  of  ordering 
the  defendant  to  answer  over,  as  in 
other  cases,  the  decree  is  revived 
as  asked  by  the  plaintiff.  Nye  v. 
Slaughter,  27  Miss.  638  (1854). 

The  court  in  its  discretion  may 


DEMURRERS 


423 


overruling  of  the  first.^^^  If  an  answer  is  filed  with  a 
demurrer,  no  order  to  answer  over  is  necessary.^^  If 
no  answer  or  other  pleading  is  filed  after  an  order  to 
answer  further,  the  bill  may  be  taken  pro  confesso.^^  In 
some  states  the  defendant  can  avoid  answering  by  taking 
exceptions  to  the  overruling  of  the  demurrer;  but  in 
others  the  case  must  proceed  to  final  decree  before  taking 
appeal.^^ 

A  ground  of  defence  interposed  by  demurrer  and  over- 
ruled cannot  afterwards  be  sustained  in  any  other  form 
in  subsequent  pleadings  in  the  same  cause,  except  in 


refuse  to  permit  a  defendant  to 
go  to  trial  after  his  demurrer  has 
been  overruled.  State  v.  Massey, 
72  Vt.  210   (1900). 

Costs  may  be  given  the  plaintiff 
upon  the  overruling  of  the  demur- 
rer, either  by  general  chancery 
practice,  or  by  the  express  pro- 
vision of  the  rules.  See,  for  in- 
stance, Florida,  Eq.  Rule  51;  Mary- 
land, Code,  Art.  16,  Sec.  154;  New 
Jersey,  Comp.  St.,  "Chancery," 
Sec.  23;  Tennessee,  Code,  Sec.  6207. 
But  arbitrary  conditions  should  not 
be  imposed.  Jackson  Skirt,  etc., 
Co.  V.  Eosenbaum,  190  Fed.  197 
(1911). 

91a.  Florida.  G.  S.,  Sec.  1873; 
Hull  V.  Burr,  55  So.  852  (Fla. 
1911). 

Massachusetts.     Eq.  Eule  11. 

New  Jersey.  Comp.  St.,  "Chan- 
cery," Sec.  23. 

Tennessee.     Code,  Sec.  6205. 

Virginia.  Code,  Sec.  3273;  Hoge 
V.  Junkins,  79  Va.  220  (1884). 

West  Virginia.     Code,  Sec.  4784. 

The  same  was  held  under  the 
former  Federal  rules  in  Victor, 
etc.,  Co.  V.  Hoshke,  169  Fed.  894 
(1909);  Fuller  v.  Knapp,  24  Fed. 
100    (1885). 


92.  O'Hare  v.  Downing,  130 
Mass.  16   (1880). 

93.  See  Chapter  IX,  "Pro  Con- 
fesso, "  ante,  p.  359. 

94.  See  Chapter  XXVIII,  "Ex- 
ceptions and  Appeals,"  post,  p. 
850. 

In  states  where  appeal  must  be 
taken  directly  by  the  defendant 
who  wishes  to  contest  the  overrul- 
ing of  his  demurrer,  answering 
over  after  overruling  it  waives 
the  demurrer,  except  so  far  as  by 
his  answer  he  saves  the  benefit 
of  the  demurrer  to  the  final  hear- 
ing. Baumgartner  v.  Bradt,  207 
111.  345  (1904).  This  is  probably 
true  in  all  jurisdictions  when  the 
demurrer  was  for  a  defect  of  form. 
Provisional  Municipality  v.  Leh- 
mann,  57  Fed.  324,  6  C.  C.  A.  349 
(1893). 

The  Massachusetts  court  in  Salt- 
man  V.  Nesson,  201  Mass.  534 
(1909),  stigmatizes  as  an  unfortu- 
nate practice  the  overruling  by 
consent  of  a  demurrer  with  leave 
to  raise  on  the  hearing  the  ques- 
tions brought  up  by  the  demurrer. 


424 


EQUITY  PRACTICE 


certain  jurisdictions  where  the  defendant  is  allowed  to 
reserve  leave  to  bring  the  question  up  in  the  hearing  on 
his  answer.^^ 


95.  Anderson  v.  Olsen,  188  111. 
502,  afif.  90  111.  App.  189  (1901); 
Clark  V.  Pence,  111  Tenn.  20 
(1903);  Boyd  v.  Sims,  87  Tenn.  771 
(1889). 

The  overruling  of  a  demurrer  as 


to  one  defendant  is  not  res  judicata 
as  to  other  defendants  who  an- 
swered instead  of  demurring. 
Clark  V.  Pence,  111  Tenn.  20 
(1903). 


CHAPTER  XII 


PLEAS 


§  242.  General  nature  of  pleas.  The  learning  relating 
to  pleas  is  the  most  diflficult  and  the  most  useless  in  the 
art  of  pleading,  as  there  are  now  few  cases  in  which  a 
plea  is  more  useful  than  an  answer.^    We  have  seen  that 


1.  The  object  of  this  form  of 
pleading,  which  took  its  rise  at  a 
period  when  bills  in  chancery  were 
of  formidable  length,  when  put- 
ting in  answers  entailed  heavy  ex- 
pense, and  when  going  into  evi- 
dence was  a  work  of  years,  was  to 
save  the  parties  the  expense  of  an 
examination  at  large.  And  so  even 
today,  the  true  end  of  a  plea  is  to 
save  the  necessity  of  making  dis- 
covery, and  the  expense  of  exam- 
ining witnesses  at  large,  and  a  plea 
will  be  rejected  when  this  end  is 
not  acomplished.  McDermitt  v. 
Newman,  64  W.  Va.  195  (1908). 
But  it  rarely  happens  today  that  a 
bill  is  filed,  which  is  not  demurra- 
ble, and  to  which  the  defence  can 
be  reduced  to  a  single  point.  And 
today  the  reasons  for  using  pleas 
have  almost  ceased  to  have  any  ap- 
plication, by  reason  of  the  short- 
ness of  the  bills,  the  practice  of 
only  alleging  material  facts,  and 
the  expedition  with  which  evidence 
is  gone  into.  Further,  the  modern 
practice  of  trying  the  questions 
which  might  be  raised  by  a  plea 
upon  the  answer  itself,  by  plead- 
ing the  matter  in  bar  in  the  answer 


and  submitting  to  the  court  wheth- 
er any  other  answer  can  be  called 
for,  has  substituted  an  equivalent 
for  nearly  all  the  virtue  resident 
in  a  plea.  Lastly,  the  extreme  diffi- 
culty of  framing  a  plea  so  that  it 
shall  be  sufiieient  in  point  of  form 
has  rendered  pleas  so  unmanage- 
ble  and  so  unpopular,  that  they  are 
shunned  by  common  consent.  In 
Drewry  's  Eq.  PI.,  p.  65,  the  learned 
author  says,  ' '  It  cannot  be  too 
much  impresed  on  students  and 
young  pleaders  that  the  temper  of 
the  times  and,  it  may  be  added  re- 
spectfully, the  judicial  temper  of 
the  courts  are  in  favor  of  getting 
as  speedily  as  possible  at  the  sub- 
stance of  a  case  and  dealing  with 
it  on  its  merits.  So  that  forms  of 
pleading  such  as  pleas  and  demur- 
rers, which  have  a  tendency  to 
shut  out  from  sight  the  merits,  and 
if  they  do  not  succeed  in  doing  so 
are  mere  dilatorics,  are  not  viewed 
with  favor  and  are  not  often  prac- 
tically useful. ' ' 

The  most  radical  evidence  of  this 
"temper  of  the  times"  is  fur- 
nished by  the  Federal  Equity  Rules 
of  1913.     By  Rule  29,  "Demurrers 


425 


426 


EQUITY  PRACTICE 


a  demurrer  can  only  be  employed  when  the  objection 
appears  on  the  face  of  the  bill.  AVhen  the  objection  does 
not  appear  on  the  face  of  the  bill,  but  is  matter  outside, 
a  plea  or  answer  must  be  used.  A  plea  differs  from  an 
answer  in  that  the  latter  has  to  meet  all  the  allegations  of 
the  bill,  while  a  plea  may  be  defined  as  a  single  defence 
which  reduces  the  cause  or  some  part  of  it  to  a  single 
point,  and  upon  that  point  creates  a  bar  to  the  suit  or  to 
that  part  of  it  to  which  the  plea  applies.^  It  is  not  neces- 
sary however  that  it  should  consist  of  a  single  fact.  It 
may  comprise  a  variety  of  circumstances,  if  all  taken 
together  constitute  but  a  single  point.^  A  plea  must 
however  present  but  a  single  issue  of  fact.  If  it  contains 
more  than  one,  it  will  be  bad  for  duplicity  or  multifaii- 
ousness.^    Nor  as  a  rule  is  it  allowable  to  file  several  dis- 


and  pleas  are  abolished. 
Every  defense  heretofore  present- 
able by  plea  in  bar  or  abatement 
shall  be  made  in  the  answer  and 
may  be  separately  heard  and  dis- 
posed of  before  the  trial  of  the 
principal  case  in  the  discretion  of 
the  court."  The  effect  of  this  rule 
is  to  deprive  Federal  decisions  on 
pleas  in  equity  of  their  force  as 
authority  in  Federal  equity  proced- 
ure, although  they  remain  valuable 
as  evidencing  the  principles  of  gen- 
eral chancery  procedure  which  are 
still  in  force  in  the  state  courts. 

In  view  of  the  tendency  which 
we  have  now  noted,  as  little  space 
as  possible  will  be  spent  in  this 
work  on  the  subject  of  pleas. 

2.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
603;  Story's  Eq.  PI.  (10th  ed.), 
Sec.  649. 

A  plea  cannot  be  used  where  a 
demurrer  is  possible.  Kelly  v. 
Masionis,  79  N.  J.  E.  644  (1912); 
Davis  v.  Davis,  57  N.  J.  E.  252 
(1898);  Aingcr  v.  Webster,  82  Atl. 
666   (Vt.   1912);   Farley  v.   Kitson, 


120  U.  S.  303,  30  L.  ed.,  684  (1886). 
But  a  demurrer  filed  where  a  plea 
is  the  proper  procedure  was  in  the 
absence  of  objection,  treated  as  a 
plea  in  United  States  v.  Peralta,  99 
Fed.  618  (D.  C.  1900). 

3.  New  Decatur  v.  Sharfenburg, 
147  Ala.  367  (1905);  Harvey  v. 
Morgan,  58  Fla.  427  (1909);  Ehino 
V.  Emery,  79  Fed.  483  (C.  C.  1897); 
Hazard  v.  Durant,  25  Fed.  26  (C. 
C.  1885). 

4.  First  Nat.  Bank  v.  Tyson,  133 
Ala.  459  (1901);  Pinellas  Packing 
Co.  V.  Clearwater,  etc.,  Assn.,  61 
So.  625  (Fla.  1913);  Mains  v. 
Homer,  etc.,  Co.,  116  Mich.  526 
(1898);  Groel  v.  United,  etc.,  Co., 
70  N.  J.  E.  616  (1905);  Ehode 
Island  V.  Massachusetts,  14  Pet. 
211,  10  L.  ed.  423  (1840);  Sims  v. 
United  Wireless,  etc.,  Co.,  179  Fed. 
540  (C.  C.  1910);  Bunker  Hill  Co. 
V.  Shoshone  Co.,  109  Fed.  504,  47 
C.  C.  A.  200  (1901).  If  the  plea 
presents  more  than  one  defence, 
the  plaintiff  may  move  that  the 
defendant   elect   between   the   two. 


PLEAS 


427 


tinct  pleas  to  one  bill,  but  this  may  sometimes  be  done  by 
special  leave  of  court  when  great  inconvenience  would 
otherwise  result.^  Likewise  the  facts  pleaded  must  not 
be  inconsistent  with  each  other."^ 

§  243.  Plea  may  be  to  whole  bill  or  part.  The  defend- 
ant may  plead  to  the  whole  bill  or  to  part  only;  if  to  the 
whole  bill,  no  answer  need  be  made,  except  in  special 
cases  which  will  be  exi^lained  later;  if  to  part,  he  must 
answer  to  the  rest.  For  the  purpose  of  deciding  the  val- 
idity of  the  plea,  the  bill  so  far  as  not  contradicted  by  the 
plea  is  admitted  to  be  true.'^ 

§  244.  Kinds  of  pleas.  Pleas  may  be  either  to  the  relief 
or  discovery  or  to  both,  but  only  pleas  to  relief  will  be 
considered  here.  All  pleas  may  be  primarily  divided  into 
two  general  classes:  I.  Pure  or  affirmative  pleas.  II. 
Anomalous  or  negative  pleas.    A  pure  plea  is  one  which 


and  the  court  may  order  that  at 
the  defendant's  option  the  plea  be 
made  an  answer,  or  that  he  should 
elect  between  the  two  defences. 
Pinellas  Packing  Co.  v.  Clearwater, 
etc.,  Assn.,  61  So.  625   (Fla.  1913). 

5.  Pinellas  Packing  Co.  v.  Clear- 
water, etc.,  Assn.,  61  So.  625  (Fla. 
1913);  Sims  v.  United  Wireless, 
etc.,  Co.,  179  Fed.  540  (C.  C.  1910); 
Gilbert  v.  Murphy,  100  Fed.  161 
(C.  C.  1900),  leave  denied;  Kellner 
V.  Insurance  Co.,  43  Fed.  623  (C. 
C.  1890),  leave  granted.  If  an 
extra  plea  is  filed  without  leave  it 
may  be  struck  from  the  files  on 
motion.  Mitchell  v.  Mason,  55  So. 
387  (Fla.  1911).  But  if  not  ob- 
jected to,  the  irregularity  may  be 
disregarded  on  hearing  as  to  their 
suflficiency.  Bender  v.  Dialogue,  80 
N.  J.  E.  408   (1912). 

6.  Emmott  v.  Mitchell,  14  Sim. 
432,  436. 

7.  State  v.  Benners,  55  So.  298 
(Ala.  1911);  Graves  v.  Blondell,  70 
Me.    190    (1879);    Bennett   v.   Ben- 


nett, 63  N.  J.  E.  306  (1901), 
semhle;  Bender  v.  Dialogue,  80  N. 
J.  Eq.  408   (1912). 

Consequently  it  is  not  necessary 
for  a  suflficient  plea  in  bar  to  the 
whole  bill  to  notice  and  specifically 
admit  or  deny  all  the  allegations 
of  the  bill.  But  in  general  chan- 
cery practice  a  plea  is  insufficient 
which  assumes  to  bar  the  whole 
bill,  but  actually  covers  only  a 
part  of  the  plaintiff's  case  and  is 
not  accompanied  with  sufficient  an- 
swer covering  the  rest  of  the  plain- 
tiff 's  case.  Supreme  Lodge  v. 
Wing,  131  Ala.  395  (1901);  Lott 
v.  Barnes,  etc.,  Co.,  57  Fla.  468 
(1909);  Snow  v.  Counselman,  136 
111.  191  (1891);  Quint  v.  Little,  4 
Me.  495  (1827);  Newton  v.  Thayer, 
17  Pick.  (Mass.)  129  (1835);  Ben- 
der V.  Dialogue,  80  N.  J.  E.  408 
(1912);  Miller  v.  United  States 
Casualty  Co.,  61  N.  J.  E.  110 
(1900);  Schnauffer  v.  Aste,  148 
Fed.  867   (C.   C.   1906). 


428 


EQUITY  PRACTICE 


sets  up  some  matter  outside  the  bill  as  a  defence  by  way 
of  confession  and  avoidance,  as  for  instance  a  plea  that 
the  plaintiff  has  given  a  release  of  his  claim.  An  anom- 
alous or  negative  plea  is  one  which  negatives  or  denies 
some  essential  fact  stated  in  the  bill,  without  which  the 
bill  cannot  be  maintained,  as  for  instance  to  a  bill  brought 
to  redeem  from  a  mortgage,  a  plea  denying  that  there 
was  any  mortgage.* 

Again,  these  two  classes  of  pleas,  viz.,  pure  pleas  and 
anomalous  pleas,  may  each  be  either  pleas  in  abatement, 
which  contend  simply  that  the  particular  bill  in  question 
cannot  be  maintained  by  reason  of  some  defect  of  juris- 
diction or  frame;  **  or  pleas  in  bar  which  go  to  the  very 
right  or  cause  of  action  itself.** 

§  245.  Pleas  in  abatement — To  the  jurisdiction.  A  plea 
will  lie  for  any  want  of  jurisdiction,  either  over  the  sub- 
other  answer.  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  626. 


The  rules  of  some  jurisdictions 
however  provide  that  a  plea  shall 
not  be  overruled  merely  because  it 
does  not  cover  so  muoh  of  the  bill 
as  it  might.  See  Equity  Eules  53 
of  Florida,  8  of  Michigan,  20  of 
Ehode  Island,  and  18  of  Vermont. 

8.  Hitchens  v.  Lander,  G.  Coop. 
34,  38.  Negative  pleas  must  usu- 
ally be  supported  by  answers.  See 
note   27,  post,  p.  434. 

8a.  In  Tennessee  a  plea  in  abate- 
ment may  also  be  based  on  a  defect 
in  issuance  or  service  of  process. 
See  Code  of  1858,  Sec.  2902;  Martin 
V.  Eamsey,  7  Hump.  260  (1846). 

9.  This  distinction  between  pleas 
in  abatement  and  pleas  in  bar  is 
theoretically  correct  and  valuable, 
and  at  law  is  of  some  practical  im- 
portance with  reference  to  the  con- 
clusion of  the  plea,  but  in  equity  it 
is  generally  considered  to  have  no 
practical  importance,  since  the  con- 
clusion of  the  plea  is  the  same,  viz: 
a  submission  that  the  defendant  is 
not  bound  to  put  in  any  further  or 


In  Ewald  V.  Ortynsky,  77  X.  J. 
E.  76  (1910)  the  court  discussed 
the  difference  between  a  plea  in 
bar  and  a  plea  in  abatement,  in 
equity  procedure,  and  held  that  a 
plea  of  insufficient  service  could 
not  properly  ask  that  the  suit  be 
dismissed,  but  merely  that  the  im- 
proper service  be  set  aside  and  sup- 
plementary service  be  made;  in 
other  words,  it  was  held  that  such 
a  plea  was  properly  only  a  plea  in 
abatement. 

In  Chicago,  etc.,  Ry.  Co.  v.  Weil, 
183  Fed.  956  (C.  C.  A.  1911)  the 
court  also  takes  a  distinction  be- 
tween pleas  in  bar  and  in  abate- 
ment. 

In  Foley  v.  Ruley,  43  W.  Va.  513 
(1897)  the  court  saj^s  that  a  plea 
in  abatement  should  ask  that  the 
bill  be  quashed,  and  should  not 
submit  that  the  defendant  is  not 
bound  to  answer  further. 


PLEAS 


429 


ject  matter  or  the  person,  which  does  not  appear  on  the 
face  of  the  bill.^" 

Defects  as  to  jurisdiction  over  the  subject  matter  have 
been  considered  above  at  some  length  under  demurrers. 
Such  defects  more  commonly  appear  on  the  face  of  the 
bill,  but  where  they  do  not,  a  plea  is  a  proper  way  to  take 
advantage  of  them.^^ 

Defects  as  to  jurisdiction  over  the  person,  which  may 
be  taken  advantage  of  by  plea,  when  not  apparent  on  the 
face  of  the  bill,  are  infancy,  idiocy  or  lunacy,^  ^  ^nd  bank- 
ruptcy,^"^ which  were  all  considered  above  under  demur- 
rers; and  also  the  plea  that  the  plaintiff  does  not  sustain 
the  character  he  assumes  or  the  defendant  that  which  he 
is  alleged  to  bear.^^ 


10.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
pp.  628,  630;  West  Virginia,  Code, 
1906,  Sec.   3836. 

Defects  of  territorial  jurisdic- 
tion by  reason  of  non-residence 
cannot  be  safely  raised  by  plea, 
since  the  latter  has  been  held  to 
constitute  a  general  appearance 
and  cure  the  very  objection  sought 
to  be  raised.  See  Sec.  182,  ante, 
p.  348;  Thayer  v.  Wales,  5  Fisher 
P.  C.  448,  F.  C.  13,872  (C.  C. 
1872);  contra,  Van  Antwerp  v. 
Hulbird,  7  Blatch.  426,  F.  C.  16,826 
(C.  C.  1870);  Stephenson  v.  Davis, 
56  Me.  73  (1868);  Lanning  v. 
Twining,  71  N.  J.  E.  573  (1906). 

The  same  is  true  of  want  of  ju- 
risdiction over  the  person,  when 
the  defendant,  though  within  the 
territorial  jurisdiction,  has  not 
been  properly  served  with  process. 

11.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  628.  In  Davis  v.  Davis,  57  N. 
J.  E.  252  (1898)  a  plea  of  this  sort 
was  overruled  because  the  defect 
appeared  on  the  face  of  the  bill 
and  could  have  been  relied  on  by 
demurrer. 


12.  A  plea  merely  that  the  plain- 
tiff is  non  compos,  or  incapable  of 
suing  is  insufficient;  it  should  al- 
lege idiocy  or  lunacy  duly  found 
by  proper  procedure.  Corlies  v. 
Corlies,  23  N.  J.  E.  197  (1872); 
Dudgeon  v.  Watson,  23  Fed.  161 
(1885). 

13.  This  plea  is  proper  where  the 
subject  matter  of  the  suit  has  by 
bankruptcy  become  vested  in  the 
trustee.  Mount  v.  Manhattan  Co., 
41  N.  J.  E.  211  (1886);  Kittredge 
V.  Claremont  Bank,  3  Story  590,  F. 
C.  7,858   (C.  C.  1845). 

14.  Thus  the  plea  may  either 
deny  the  existence  of  the  person  in 
whose  behalf  the  bill  has  been  ex- 
hibited, or  of  the  character  in 
which  the  plaintiff  affects  to  sue, 
or  it  may  show  that  for  some  rea- 
son not  disclosed  in  the  bill,  the 
title  under  which  the  plaintiff 
claims  never  vested  in  him.  Frank- 
lin Union  v.  People,  121  111.  App. 
647,  aff.  220  111.355  (1906);  Nich- 
olas v.  Murray,  5  Sawy.  320,  F.  C. 
10,223  (C.  C.  1878);  Dental  Co.  v. 
Weatherbee,  2  Cliff.  555,  F.  C.  3,810 


430 


EQUITY  PRACTICE 


§  246.  Pleas  in  abatement — To  the  bill.  Pleas  to  the 
l)ill  are:  1,  Plea  of  another  suit  pending  in  a  court  of 
equity  of  the  same  state  for  the  same  matter;  ^^  2,  plea  of 


(C.  C.  1866).  Thus  a  plea  may 
show  that  the  alleged  plaintifif  is  a 
fictitious  person  or  was  dead  at  the 
time  of  commencing  the  suit;  or 
that  plaintifif  or  defendant  is  not 
administrator  or  executor  or  heir 
as  alleged.  Bridger  v.  Potter,  32 
111.  6G   (1S63). 

Formerly  in  the  Federal  courts 
the  objection  that  the  real  party 
in  interest  as  plaintiff  was  a  citi- 
zen of  the  same  state  as  the  de- 
fendant could  be  taken  by  plea. 
MacVeagh  v.  Denver,  etc..  Water- 
works, 85  Fed.  74,  29  C.  C.  A.  33 
(1897). 

15.  Such  a  plea  was  sustained  in 
these  cases:  York  Mfg.  Co.  v. 
Cutts,  18  Me.  204  (1841);  Moore  v/ 
Holt,  3  Tenn.  Ch.  141  .(1876),  held 
good  in  part:  Folej'  v.  Ruley,  43 
W.  Ya.  513  (1897),  semhle ;  Byan 
V.  Seaboard,  etc.,  Co.,  89  Fed.  397 
(C.  C.  1898),  by  comity,  between 
dififerent  circuit  courts;  Zimmer- 
man V.  So  Eelle,  80  Fed.  417,  25  C. 
C.  A.  518  (1897),  suit  pending  in 
state  court  of  Colorado;  Radford 
V.  Folsom,  14  Fed.  97  (C.  C.  1882), 
suit  pending  in  state  court  of  Iowa. 

The  plea  is  not  good  where  it 
relies  on  litigation  pending  in  an- 
other state,  or  in  a  court  of  law,  or 
where  the  litigation  relied  on  is 
not  for  the  same  cause  of  action, 
between  substantially  the  same 
parties,  and  for  the  same  relief. 

niinois.  Foreman  Shoe  Co.  v. 
Lewis  Co.,  191  111.  155  (1901),  sem- 
hle, here  the  plea  was  offered  in  an 
action  at  law;  Miller  v.  Doran,  151 
111.  App.  527  (1909). 

New  Jersey.     Grififing   v.   A.    A. 


Griffing  Iron  Co.,  61  N.  J.  E.  269 
(1901);  Larter  v.  Canfield,  59  N. 
J.  E.  461  (1900). 

Pennsylvania.  Hessenbruch  v. 
Markle,  194  Pa.  581  (1900). 

Tennessee.  Macey  v.  Childress, 
2  Teuu.  Ch.'23  (1874). 

United  States.  Insurance  Co.  v. 
Brun's  Assignee,  96  U.  S.  588,  24 
L.  ed.  737  (1878);  Bunker  Hill  Co. 
V.  Shoshone  Co.,  109  Fed.  504,  47 
C.  C.  A.  200  (1901). 

The  former  suit  must  be  pending 
not  only  at  the  time  when  the  sec- 
ond suit  is  brought,  but  also  at  the 
time  when  the  plea  is  filed.  Briggs 
V.  Stroud,  58  Fed.  717  (C.  C.  1893). 

The  objection  of  another  suit 
pending  should  not  be  taken  by  an- 
swer, but  only  by  plea,  in  the  ab- 
sence of  statutes  extending  the 
nature  of  answers.  Battell  v. 
Matot,  58  Yt.  271  (1885);  Pierce 
V.  Feagans,  39  Fed.  587  (C.  C. 
1889). 

The  plea  of  another  suit  pend- 
ing is  usually  not  replied  to  or  set 
down  for  argument,  but  is  referred 
to  a  master  to  ascertain  whether 
the  prior  litigation  is  co-extensive 
with  the  present  bill,  and  the  plea 
is  allowed  or  overruled  according 
to  the  facts  thus  found.  On  the 
basis  of  such  a  report,  the  plea  was 
allowed  in  part  in  Moore  v.  Holt, 
3  Tenn.  Ch.  141  (1876).  But  in 
Zimmerman  v.  So  Eelle,  80  Fed. 
417,  25  C.  C.  A.  518  (1897)  the 
court  did  not  think  it  necessary  to 
refer  the  plea  to  a  master. 

In  Way  v.  Bragaw,  16  N".  .7.  E. 
213  (1863),  it  is  said  that  where  a 
suit  at  law  is  pending  in  which  the 


PLEAS 


431 


want  of  necessary  parties ;  ^'^  3,  plea  of  multiplicity  of 
suits  or  of  multifariousness/'^ — when  such  objections  are 
not  apparent  on  the  face  of  the  bill. 

§  247.  Pleas  in  bar.  Pleas  in  bar  may  be  divided  into 
three  kinds:  1,  pleas  founded  on  some  bar  created  by 
statute,  such  as  the  statute  of  limitations  ^'^  or  the  statute 


remedy  is  co-extensive  with  equity, 
the  defendant  in  the  equity  suit 
can  require  the  plaintiff  to  proceed 
in  one  court  only. 

Dietrich  v.  Deavitt,  81  Vt.  160 
(1908)  is  the  most  recent  case  on 
equitable  pleas  of  another  suit 
pending.  The  court  stated  that 
the  second  bill  embodied  the  con- 
troversy more  clearly  than  the 
first,  hence  instead  of  allowing  the 
plea  as  an  abatement  of  the  second 
suit,  the  court  dismissed  the  first 
bill  with  costs  and  required  the 
defendant  to  answer  to  the  second 
bill  on  receiving  costs  of  his  plea 
in  abatement. 

16.  Kidd  v.  N.  H.  Co.,  72  N.  H. 
273,  66  L.  R.  A.  574  (1903);  Mac- 
key  v.  Mackey,  71  N.  J.  E.  686 
(1906);  Dwight  v.  Central  V.  R. 
Co.,  9  Fed.  785  (C.  C.  1881).  In 
Tennessee  the  code  expressly  per- 
mits pleas  for  non-joinder  or  mis- 
joinder of  parties.    Code,  Sec.  6198. 

Such  a  plea  must  state  the  names 
of  the  absent  parties,  and  the  rea- 
sons why  they  should  be  included. 
Jackson  v.  Big  Sandy,  etc.,  R.  Co., 
63  W.  Va.  18  (1908),  sevible;  Com- 
puting Scale  Co.  v.  Moore,  139  Fed. 
197  (C.  C.  1905).  A  plea  of  lack 
of  parties  is  bad,  when  the  objec- 
tion appears  on  the  face  of  the  bill. 
Palmer  v.  Stevens,  100  Mass.  461 
(1888). 

See  Chapter  IV,  ante,  pp.  103  et 
seq.,  for  discussion  of  who  are  nec- 
essary parties. 


17.  This  subject  has  been  suffi- 
ciently considered  above  (Chapter 
V,  nnte,  pp.  200  et  seq.),  under  the 
head  of  multifariousness  in  bills. 
Generally  this  defect  is  apparent 
on  the  face  of  the  bill,  and  then 
of  course  it  must  be  taken  by  de- 
murrer, but  if  it  is  not,  a  plea  in 
such  case  is  good.  Benson  v.  Had- 
field,  4  Hare  32. 

18.  Espy  V.  Comer,  76  Ala.  501 
(1884);  Battle  v.  Reid,  68  Ala.  149 
(1880);  Carroll  v.  Waring,  3  G.  & 
J.  (Md.)  491  (1832);  Somerset 
Bank  v.  Veghte,  42  N.  J.  E.  39 
(1886) ;  Harpending  v.  Dutch 
Church,  16  Pet.  455,  10  L.  ed.  1029 
(1842);  West  Portland,  etc.,  Assn. 
V.  Lownsdale,  17  Fed.  205  (D.  C. 
1883). 

It  is  not  necessary  to^  refer  ex- 
pressly to  the  statute  creating  the 
bar,  as  the  court  will  take  judicial 
notice  of  it.  Harpending  v.  Dutch 
Church,  16  Pet.  455,  10  L.  ed.  1029 
(1842).  Xor  is  it  necessary  to  aver 
that  the  case  does  not  fall  within 
any  of  the  exceptions  of  the  stat- 
ute. Carroll  v.  Waring,  3  G.  &  J. 
(Md.)  491  (1832).  It  is  generally 
too  late  to  interpose  a  plea  of  the 
statute  of  limitations  after  the 
master 's  report  is  in,  where  the 
point  was  not  taken  on  demurrer 
or  by  answer,  though  it  is  within 
the  power  of  the  court,  in  the  fur- 
therance of  justice,  to  allow  the 
plea    in    an    extreme    case   at    any 


432 


EQUITY  PRACTICE 


of  frauds;  ^^  2,  pleas  founded  on  matter  of  record,  such  as 
the  judgment  or  decree  of  a  court  of  record  rendering  the 
matter  res  adjudicata;  -"  3,  pleas  of  pure  matter  of  fact. 


time.     "Webb  v.  Fuller,  83  Me.  405 
(1891),  semhle. 

Laches  was  held  a  good  plea  in 
Wilcox  &  White  Co.  v.  Farraud  Or- 
gan Co.,  139  Fed.  46  (C.  C.  1905), 
and  Edison,  etc.,  Co.  v.  Equitable, 
etc..  Society,  55  Fed.  478  (C.  C. 
1893).  In  Crafts  v.  Crafts,  23  R. 
I.  5  (1901),  such  a  plea  was  over- 
ruled because  it  did  not  state  suffi- 
cient facts  to  show  the  laches. 

19.  Martin  v.  Wharton,  38  Ala. 
637  (1863);  Bailey  v.  Wright,  2 
Bond  181,  F.  C.  749  (C.  C.  1868), 
semhle;  Cotington  v.  Fletcher,  2 
Atk.  155;  Main  v.  Melbourne,  4 
Ves.  720. 

This  defence  must  be  set  up  spe- 
cially, either  by  plea  or  answer,  or 
it  is  waived.  Irwin  v.  Dyke,  114 
111.  302  (1885);  Douglas  v.  Suow, 
77  Me.  91  (1885);  Whiting  v.  Dyer, 
21  R.  I.  85  (1898). 

other  statutes  which  may  be  the 
subject  of  pleas.  Usury.  Goodwin 
v.  Bishop,  145  HI.  421  (1893),  sem- 
hle; Crane  v.  Homeopathic  Co.,  27 
N.  J.  E.  484  (1875),  semhle.  Anti- 
trust act.  Perry  v.  United  States 
School,  etc.,  Co.,  232  111.  101  (1907). 

20.  Such  a  plea  was  sustained  in 
these  cases:  Green  v.  Bogue,  158 
U.  S.  478,  39  L.  ed.  1061  (1895); 
Horn  V.  Detroit,  etc.,  Co.,  150  U. 
S.  610,  37  L.  ed.  1199  (1893);  Hil- 
ton V.  Guyot,  42  Fed.  249,  (C.  C. 
1890),  judgment  of  a  court  of  law 
in  a  foreign  country. 

The  plea  is  not  good  when  the 
point  in  issue  was  not  judicially 
determined  after  a  hearing  and 
upon  consideration  of  the  merits, 
or  when  the  judgment  in  the  previ- 


ous case  was  not  for  the  same  sub- 
ject matter,  although  the  first  case 
need  not  have  arisen  in  a  court  of 
equity,  and  the  same  parties  need 
not  have  been  involved,  provided 
the  same  interests  and  questions 
were  in  fact  involved  and  deter- 
mined. 

Florida.  Da  Costa  v.  Dibble,  40 
Fla.  418   (1898). 

Illinois.  Gouwens  v.  Gouweus, 
222  111.  223  (1906);  Cheney  v.  Pat- 
ton,  134  111.  422  (1890). 

New  Jersey.  Gardner  v.  Rais 
beck,  28  X.  J.  E.  71  (1877). 

Pennsylvania.  Taylor  v.  Cornel 
ius,  60  Pa.  187  (1869),  semhle,  an- 
swer. 

Rhode  Island.  Crafts  v.  Crafts, 
23  R.  I.  5   (1901). 

Tennessee.  Jourollman  v.  Mas- 
sengill,  86  Tenn.  81  (1887). 

United  States.  Grant  v.  Phenix 
Co.,  121  U.  S.  105,  30  L.  ed.  905 
(1887);  Chicago  B.  &  Q.  Ry.  Co. 
V.  Weil,  183  Fed.  956  (C.  G.  A. 
1911');  Moredock  v.  Moredock,  179 
Fed.  163  (C.  C.  1910);  Bunker  Hill 
Co.  V.  Shoshone  Co.,  109  Fed.  504, 
47  C.  C.  A.  200  (1901). 

The  objection  may  also  be  raised 
in  the  answer,  but  if  not  raised 
either  by  plea  or  answer,  when  not 
apparent  on  the  face  of  the  bill, 
it  cannot  be  relied  upon  in  evi- 
dence. Turley  v.  Turley,  85  Tenn. 
251  (1886). 

The  plea  must  set  forth  enough 
of  the  former  bill  and  answer  to 
show  that  the  same  point  was  then 
in  issue,  or  else  the  pleader  must 
file  a  copy  of  the  record  of  the 
previous   case   as  an   exhibit    (Jou- 


PLEAS 


433 


The  principal  pleas  under  the  last  head  are:  pleas  of 
release;  2^  stated  account;  ^^  settled  account;--^  award; -^ 
purchase  for  valuable  consideration;  -^  and  of  title  in  the 
defendant.^*^ 


rollman  v.  Massengill,  86  Tenn.  81 
(1887)),  and  the  court  may  on  re- 
quest or  of  its  own  motion  require 
such  copy  of  the  record  to  be  filed 
before  argument. 

On  a  plea  of  res  judicata,  the 
court  may  on  motion  refer  the  plea 
to  a  master  to  ascertain  the  truth 
of  the  same  and  of  its  allegation 
of  identity  of  the  causes  of  action, 
or  the  defendant  may  have  the 
truth  of  the  plea  tried  under  plea 
and  replication  in  ordinary  course, 
or  may  set  the  plea  for  argument 
as  to  its  sufficiency.  Green  v. 
Bogue,  158  U.  S.  478,  39  L.  ed.  1061 
(1895);  John  D.  Park  &  Sons  Co. 
V.  Buren,  133  Fed.  807  (C.  C. 
1904) ;  Emma  Silver  Mining  Co.  v. 
Same,  1  Fed.  39   (C.  C.  1880). 

21.  Eouskulp  V.  Kershner,  49 
Md.  516  (1878);  McClane's  Admr. 
V.  Shepherd's  Exr.,  21  N.  J.  E.  76 
(1870);  Horn  v.  Detroit,  etc.,  Co., 
150  U.  S.  610,  37  L.  ed.  1199 
(1893);  Armengard  v.  Coudert,  27 
Fed.  247  (C.  C.  1886);  Hazard  v. 
Durant,  25  Fed.  26  (C.  C.  1885). 

The  plea  of  release  should  set 
out  the  consideration  upon  which 
it  was  made.  Brooks  v.  Sutton, 
L.  R.  5  Eq.  361. 

22.  Greene  v.  Harris,  11  R.  I.  5 
(1874). 

A  stated  account  is  one  which 
has  been  examined  and  while  the 
parties  have  admitted  to  be  cor- 
rect, but  which  has  not  been  paid. 
The  defendant  pleading  a  stated 
account  must  show  that  it  was  in 
writing,  state  what  the  balance 
was,  and  that  the  account  is  just 

Whitehouse  E.  P.  Vol.  1—28 


and  true.  Harrison  v.  Farrington, 
38  N.  J.  E,  359  (1884);  Driggs  v. 
Garretson,  25  N.  J.  E.  178  (1874). 
A  plea  of  account  stated  or  set- 
tled is  properly  filed  to  a  bill 
which  seeks  to  open  and  correct 
the  account. 

23.  An  account  is  settled  when 
the  balance  due  has  been  admitted 
and  paid.  A  plea  on  this  ground 
has  the  same  requirements  and 
characteristics  as  a  plea  of  stated 
account. 

24.  Suydam  v.  Johnson,  16  N.  J. 
E.  112  (1863);  Witt  v.  Ellis,  2 
Cold.  (Tenn.)  38  (1865).  A  plea 
of  general  agreement  to  refer  all 
matters  of  dispute  to  arbitrators 
cannot  be  pleaded  in  bar.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  671,  citing: 
Ld.  Red.  264;  Wellington  v.  Mack- 
intosh, 2  Atk.  569,  570;  Michel  v. 
Harris,  4  Bro.  C.  C.  311,  315,  2  Ves. 
Jr.  129,  136, 

25.  Rouskulp  V.  Kershner,  49 
Md.  516  (1878);  Cheatham  v. 
Pearce,  89  Tenn.  668  (1891); 
United  States  v.  California,  etc.. 
Land  Co.,  148  U.  S.  31,  37  L.  ed. 
354  (1892);  Metcalf  v.  American 
School  Furniture  Co.,  122  Fed.  115, 
(C.  C.  1903). 

Such  a  plea  must  aver  the  want 
of  notice  fully,  particularly  and 
precisely,  even  though  not  charged 
in  the  bill,  and  must  aver  the  ab- 
sence of  all  knowledge  of  facts 
charged  from  which  notice  may  be 
inferred.  Woodruff  v.  Cook,  2 
Edw.  Ch.  (N.  Y.)  259  (1834).  It 
should  also  state  the  amount  of 
the  consideration,  to  whom  it  was 


434 


EQUITY  PRACTICE 


§  248.  Pleas  supported  by  answers.  xVs  a  general  rule, 
anomalous  or  negative  pleas  must  be  supported  by 
answers.  That  is,  whenever  the  bill  contains  allegations 
or  charges  of  certain  facts,  such  as  fraud  or  notice  of 
title,  which,  if  true,  would  destroy  the  effect  of  a  plea, 
which  otherwise  would  be  good,  such  charges  must  be 
denied  generally  in  the  plea,  and  the  plea  must  be  sup- 
ported by  a  clear  and  full  answer  to  all  such  charges.-' 


paid,  and  when.  Tompkins  v. 
Ward,  4  Saudf.  Ch.  (X.  Y.)  59-1 
(1847). 

26.  Founded  generally  on  a  will, 
a  conveyance,  or  on  a  long,  peace- 
able and  adverse  possession.  Har- 
vey V.  Morgan,  58  Fla.  427  (1909); 
Wythe  V.  Palmer,  3  Sawy.  412,  F. 
C.  18,120   (C.  C.  1875). 

The  following  are  some  miscel- 
laneous pleas  of  matter  of  fact. 
Ocala,  etc.,  Works  v.  Lester,  49 
Fla.  347  (1905),  plea  of  tender; 
Klepper  v.  Powell,  6  Heisk. 
(Tenn.)  503  (1871),  plea  of  tem- 
porary absence,  to  bill  for  attach- 
ment on  ground  of  absence  from 
the  state;  Horn  v.  Detroit,  etc., 
Co.,  150  U.  S.  610,  37  L.  ed.  1199 
(1893),  plea  of  transfer  of  defend- 
ant's interest  to  a  third  person; 
Daniels  v.  Benedict,  97  Fed.  367  (C. 
C.  A.  1899),  a  plea  of  agreement  to 
separate,  to  divorced  wife's  bill  to 
obtain  deceased  husband's  prop- 
erty; Burrill  v.  Hackley,  35  Fed. 
833  (C.  C.  1888),  plea  of  surrender 
of  plaintiff's  patent,  to  infringe- 
ment bill. 

27.  Florida.  Eq.  Eule  49;  Hen- 
derson v.  Chavies,  35  Fla.  423 
(1895). 

Maryland.  Code,  Art.  16,  Sec. 
148;  Eq.  Eule  17;  Eouskulp  v. 
Kershner,  49  Md.  516  (1878). 

Massachusetts.    Eq.  Eule  9. 

Michigan.    Eq.  Eule  8. 


New  Hampshire.  Bellows  v. 
Stone,  8  N.  H.  280  (1836). 

New  Jersey.  Harrison  v.  Far- 
rington,  38  X.  .J.  E.  358  (1884). 

Rhode  Island.  Eq.  Eule  20; 
Green  v.  Harris,  11  E.  I.  5  (1874). 

Tennessee.  Seif red  v.  People 's 
Bank,  1  Baxt.   (Tenn.)  200  (1873). 

Vermont.     Eq.  Eule  13. 

United  States.  Sims  v.  United 
Wireless,  etc.,  Co.,  179  Fed.  540 
(C.  C.  1910);  United  Cigarette  Co. 
V.  Wright,  132  Fed.  195  (C.  C. 
1904). 

So  facts  alleged  which,  if  true, 
are  sufficient  to  show  a  partnership 
must  be  denied  by  an  answer,  or 
the  plea  of  no  partnership  will  be 
bad.  Everit  v.  Watts,  10  Paige 
(X.  Y.)  82  (1843). 

The  fair  inference  from  the  facts 
alleged  in  the  bill  must  also  be 
overcome  by  the  answer  in  sup- 
port of  the  plea,  otherwise  the 
court  will  intend  them  against  the 
pleader.  Harrison  v.  Farrington, 
38  N.  J.  E.  358  (1884). 

No  answer  is  needed  when  an  al- 
legation of  fraud  in  the  plea  is  so 
general  as  to  be  considered  sur- 
plusage. Perry  v.  United  States 
School,  etc.,  Co.,  232  HI.  101 
(1907),  plea  that  creditor's  claim 
is  void  under  anti-trust  act,  to 
creditor's  bill.  No  answer  is 
needed  when  there  are  no  charges 
in   the   bill   which   if   true   destroy 


PLEAS 


435 


Such  answer  in  support  of  a  plea  is  to  be  distinguished 
from  the  case  where  the  defendant  files  a  plea  to  a  part  of 
the  bill  only,  and  answers  to  the  rest. 

§  249.  Pleas  not  overruled  by  answers.  It  was  for- 
merly held,  in  general  chancery  practice,  that  where  the 
defendant  pleaded  to  part  of  the  bill  and  answered  to  the 
rest,  if  the  answer  extended  to  any  portion  of  the  bill 
properly  covered  by  the  plea,  the  latter  was  overruled  by 
the  answer,  since  it  was  inconsistent  for  the  defendant  to 
say  by  his  plea  that  he  ought  not  to  answer  that  part  of 
the  bill,  and  at  the  same  time  to  answer  it.^^  This  strict 
rule  has  now  been  set  aside  in  England,^^  and  in  many 
states  in  this  country .^"^ 


the  effect  of  the  plea.  Carroll  v. 
Waring,  3  G.  &  J.  (Md.)  491 
(1832);  Somerset  Bank  v.  Veghte, 
42  N.  J.  E.  39  (1886),  bill  made 
only  general  charges  of  fraud; 
Gonover  v.  Wright,  6  N.  J.  E.  613 
(1848);  Cheatham  v.  Pearce,  89 
Tenn.  668  (1891);  Khino  v.  Emery, 
79  Fed.  483   (C.  C.  1897). 

The  plea  and  the  answer  in  sup- 
port of  it  constitute  one  pleading; 
the  answer  cannot  be  treated  sepa- 
rately. Ocala,  etc..  Works  v.  Les- 
ter, 49  Fla.  347  (1905);  Andrews 
V.  Brown,  3  Cush.  (Mass.)  130 
(1849). 

If  a  plea  is  to  part  only  of  a 
bill,  but  is  such  a  plea  as  requires 
to  be  supported  by  answer  when 
made  to  a  whole  bill,  it  must  be 
supported  by  an  answer  as  to  the 
part  it  covers.  Dwight  v.  Cen- 
tral Vermont  E.  Co.,  9  Fed.  785 
(C.  C.  1881). 

28.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  668,  citing,  inter  alia :  Mitf .  Eq. 
PI.  by  Jeremy,  299,  319,  320;  Cot- 
tington  V.  Fletcher,  2  Atk.  155; 
Portarlington  v.  Soulby,  6  Sim. 
356,  7  Sim.  28;  Hook  v.  Dorman,  1 


Sim.  &  Stu.  227;  Bolton  v.  Gard- 
ner, 3  Paige  (N.  Y.)  273  (1832); 
Souger  V.  De  Meyer,  2  Paige  (N. 
Y.)  574  (1830);  Brownell  v.  Cur- 
tis, 10  Paige  (N.  Y.)  210  (1843); 
Bangs  V.  Strong,  10  Paige  (N.  Y.) 
11  (1842). 

Modern  cases  where  pleas  were 
held  overruled  by  answers  are  the 
following:  Miller  v.  Doran,  151 
111.  App.  527  (1909);  Miller  v. 
Perks,  63  111.  App.  140  (1895);  Mc- 
Dermitt  v.  Newman,  64  W.  Va.  195 
(1908);  Grant  v.  Phenix  Co.,  121 
U.  S.  105,  30  L.  ed.  905  (1887). 

29.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
617. 

30.  Florida.     Eq.  Rule  54. 
Michigan.     Eq.  Rule  8. 

Ehode  Island.  Eq.  Rule  20; 
Greene  v.  Harris,  11  R.  I.  5  (1874). 

Tennessee.  Cheatham  v.  Pearce, 
89  Tenn.  668   (1891). 

Vermont.     Eq.  Rule  18. 

United  States.  See  the  follow- 
ing cases  prior  to  the  Equity  Rules 
of  1913.  Mercantile  Ins.  Co.  v. 
Missouri,  etc.,  R.  Co.,  84  Fed.  379 
(C.  C.  1898);  Huntington  v.  Laid- 
ley,  79  Fed.  865  (C.  C.  1897). 


436  EQUITY  PRACTICE 

§  250.  Pleas  inserted  in  answers.  The  clianceiy  rules 
of  most  of  the  states  permit  defences  by  plea  to  be 
inserted  in  answers.^  ^  When  a  plea  is  thus  filed,  it  is  of 
course  disposed  of  before  the  answer  is  replied  to  or  con- 
sidered. If  the  plea  is  sustained  and  the  bill  dismissed, 
the  answer  then  becomes  immaterial.  If  the  plea  is  over- 
ruled, the  answer  is  ready  for  replication. 

§  251.  Form  of  pleas.  A  plea,  like  a  demurrer,  con- 
sists of  five  parts:  the  title,  the  protestation  clause,  the 
specification  of  extent,  the  assignment  of  the  ground  of 
the  plea,  and  the  prayer.  A  plea  should  be  headed  with 
the  title  of  the  cause  in  the  usual  way,  and  described  as 
''The  plea  of  A.  B.  to  the  bill  of  complaint  of  E.  F."  If 
it  is  accompanied  by  an  answer,  it  should  be  called  ' '  The 
plea  and  answer. ' '  A  plea,  like  a  demurrer,  usually 
begins  by  a  general  protestation  against  the  truth  of  the 
matter  contained  in  the  bill."-  Where  the  plea  does  not 
go  to  the  whole  bill,  it  must  clearly  specify  the  part 
intended  to  be  covered  by  it.^^    The  plea  then  proceeds 

A  demurrer  does   not  overrule  a  may    be    incorporated    by    amend- 

plea.      Love   v.   Robinson,   213   Pa.  meut    in    an   answer   already   filed. 

4S0  (1906);  cojftra,  Lavin  V.  Board  Harland    v.    Person,    93    Ala.    273 

of     Commissioners,     245     111.     496  (1890) ;  Reese  v.  Bromberg,  88  Ala, 

(1910),  semhle.  619  (1889), 

A  plea   filed   after   answer   dqes  Florida.     Gen.  Stat.  Sec.  1871. 

not   necessarily  waive  the  answer.  Maine.     Eq.  Rule  14. 

Reaves  v.  Reaves,  101  Fed.  19   (C.  Maryland,      Code,   Sec,   155;   Eq. 

C,  1900),  Rule  23. 

It  is  also  provided  that  no  plea  Massachusetts.    Eq.  Rule  13. 

shall  be   overruled   simply   because  New  Hampshire,     Eq.  Rule  86. 

it  does  not  cover  so  much  of  the  Pennsylvania,     Eq.  Rule  37. 

bill  as  it  might,  in  Equity  Rules  Rhode  Island,     Eq,  Rule  22. 

53   of  Florida,   8   of  Michigan,  20  Tennessee.     Code,  Sec,  6128, 

of  Rhode  Island,  18  of  Vermont.  Vermont,     Eq,  Rule  14, 

31.  Alabama,      Code,   Sees,   3115,  32.  This  was  originally  intended 

3128,      The     plea     must      however  to  avoid  conclusion  in  another  suit, 

stand    so    distinct    as    to   leave    no  but  it  has  no  effect  in  the  suit  in 

doubt    of    its    identity    as    a   plea.  which  it  is  interposed,  and  is  not 

Mylin     v.     King,     139     Ala.     319  really   necessary. 
(1903);  Stein  v,  McGrath,  128  Ala.  33,  Snow  v,  Counselman,  136  111, 

175   (1900),     It  seems  that  a  plea  191  (1891). 


PLEAS  437 

to  state  the  fact  or  facts  constituting  the  ground  on  which 
it  rests,  and  if  it  be  a  negative  plea  to  deny  the  allegations 
and  intendments  of  the  bill.  The  rules  for  stating  these 
facts  and  denials  are  very  much  the  same  as  those  gov- 
erning the  allegation  of  bills,  but  if  anything  more  exact- 
ing. The  averments  must  be  certain,  positive,  and  direct, 
and  must  not  be  argumentative  nor  state  conclusions  of 
law.^^  Impertinence  or  scandal  in  a  plea  are  taken 
advantage  of  by  exceptions,  which  are  disposed  of  in  the 
same  way  as  exceptions  to  bills.^^  Questions  as  to  irregu- 
larities or  defects  in  the  form  of  a  plea  may  also  be  raised 
by  exceptions,  or  by  motion  to  dismiss  the  plea.^" 

§  252.  Sig^nature  and  verification  of  pleas.  Pleas  need 
only  be  signed  by  the  defendant's  counsel.  The  chan- 
cery rules  of  most  jurisdictions  provide  that  pleas  shall 
not  be  filed  until  certified  by  counsel  to  be  in  good  faith 
and  not  intended  for  delay,  and  until  certified  by  either 
counsel  or  defendant  that  they  are  true  in  fact.^"^  Fur- 
thermore, it  is  a  rule  of  general  chancery  practice  that 
where  a  defendant  pleads  new  matter  of  fact  ^^  not  stated 
in  the  bill,  which  can  only  be  sustained  by  proof  other 

34.  Harvey   v.   Morgan,   58   Fla.  Michigan.     Eq.  Eulc  8. 

427  (1910);  Cheney  v.  Patton,  134  New      Jersey.        Comp.      Laws, 

111.     422     (1890);     Kidd     v.     New  "Chancery"  Sec.  22. 

Hampshire,  etc.,  Co.,  72  N.  H.  273,  Rhode  Island.    Eq.  Eule  19. 

66  L.  R.  A.  574  (1903) ;  Gilson  v.  Ap-  Vermont.     Eq.  Rule  12. 

pleby,  78  Atl.  668  (N.  J.  E.  1911);  West  Virginia.     Code  1906,  Sec. 

Whitthorne    v.    St.    Louis    Co.,    3  3836    (pleas   in   abatement). 

Tenn.  Ch.  147  (1876);  Chisholm  v.  Contra.      Alabama.      See      New 

Johnson,  84  Fed.  384  (C.  C.  1898);  Decatur  v.  Scharfenberg,  147  Ala. 

McCloskey    v.    Barr,    38    Fed.    165  367   (1905). 

(C.  C.  1889).  38.  The      truth      of      the      facts 

35.  Moore  v.  Moore,  74  N.  J.  E.  pleaded  is  usually  more  within  the 
733   (1908).  knowledge    of    the    defendant    and 

36.  Kellner  v.   Mutual,  etc.,  Ins.  his   personal   oath   is   generally   re- 
Co.,  43  Fed.  623,  626   (C.  C.  1890).  quired  unless  the  counsel  has  also 

37.  Delawarte.  Eq.  Rule  31.  personal  knowledge  of  the  facts. 
Florida.  Eq.  Rule  48.  But  many  of  the  rules  just  cited 
Maine.  Eq.  Rule  15.  require  the  oath  of  counsel  as  to 
Maryland.     Eq.    Rule    18;    Code,  the  truth  of  the  allegation  in  any 

Art.  16,  Sec.  149.  event.     It  is  seldom,  however,  that 


438 


EQUITY  PRACTICE 


than  that  of  a  public  statute  or  record,  he  must  make 
oath  to  the  truth  of  the  facts  which  he  thus  sets  up  as  a 
defence.^"-^  The  oath  may  be  made  by  counsel  when  he 
has  personal  knowledge  of  the  truth  of  the  facts.^*^*  The 
want  of  proper  verification  may  be  taken  advantage  of 
bj"  motion  to  have  the  plea  removed  from  the  files  or  set 
aside  for  irregularity.^^  The  objection  cannot  be  taken 
at  the  argument  of  the  plea  or  upon  the  hearing."*-  The 
afifldavit  may  be  amended  by  leave  of  court.^^ 

§  253.  Filing  pleas.  After  a  plea  has  been  drawn, 
signed  and  certified,  it  must  be  filed  with  the  clerk  of  the 
court  within  the  time  provided  by  the  statutes  or  niles. 


sufficient  information  cannot  be 
obtained  to  enable  counsel  to  do 
this  in  good  faith. 

39.  Henderson  v.  Brown,  125 
Ala.  566  (1899)  under  Code,  Sec. 
3967;  Smith  v.  Hills-Carver  Co., 
107  Ala.  272  (1894),  under  Code, 
Sec.  3969;  Carroll  v.  Waring,  3 
G.  &  J.  (Md.)  491  (1832),  here  no 
oath  needed  because  no  new  facts; 
Kidd  V.  New  Hampshire,  etc.,  Co., 
72  X.  H.  273,  66  L.  E.  A.  574 
(1903). 

Plea  must  be  verified  though  an- 
swer on  oath  is  waived.  Bassett 
V.  Salisbury  Company,  43  N.  H. 
251  (1861).  A  joint  plea  must 
be  verified  by  all  parties.  Com- 
puting Scale  Co.  v.  Moore,  139  Fed. 
197  (C.  C.  1905).  But  verification 
by  one  member  of  a  partnership, 
for  the  firm,  is  sufficient.  Cheat- 
ham V.  Pearce,  89  Tenn.  668  (1891). 
A  plea  of  domicile  need  not  be 
sworn  to  as  of  knowledge,  but  only 
as  of  belief.  Ewing  v.  Blight,  3 
Wall.  Jr.  134,  F.  C.  3,589  (C.  C. 
1855). 

40.  Cheatham  v.  Pearce,  89  Tenn. 
G68  (1891);  West  Virginia,  Code, 
1906,  Sec.  3835. 


41.  Bassett  v.  Salisbury  Com- 
pany, 43  N.  H.  249  (1861);  Har- 
rison V.  Farrington,  38  N,  J.  E. 
358  (1884),  semble;  Wrompelmeir 
V.  Moses,  3  Baxt.  470  (Tenn.  1874). 

Or  by  taking  the  bill  pro  con- 
fcsso,  disregarding  the  plea  as  a 
nullity.  Trower  v.  Bernard,  37 
Fla.  226  (1896);  National  Bank  v. 
Insurance  Company,  104  U.  S.  54, 
26  L.  ed.  693  (1881);  Computing 
Scale  Co.  v.  Moore,  139  Fed.  197 
(C.  C.   1905). 

42.  Bassett  v.  Salisbury  Com- 
pany, 43  N.  H.  249  (1861);  Har- 
rison V.  Farrington,  38  N.  J.  E. 
358  (1884);  Seifred  v.  People's 
Bank,  1  Baxt.  (Tenn.)  200  (1873); 
Computing  Scale  Co.  V.  Moore,  139 
Fed.  197  (C.  C.  1905);  Cook  v. 
Sterling  Electric  Co.,  118  Fed.  45 
(C.  C.  1902). 

43.  Cheatham  v.  Pearce,  89  Tenn. 
668   (1891). 

With  leave  of  court,  the  affidavit 
may  be  filed  after  the  plea,  after 
motion  has  been  made  to  strike  out 
the  plea  for  lack  of  affidavit.  Wil- 
son V.  Mitchell,  43  Fla.  107  (1901). 


PLEAS 


439 


although  the  court  may  usually  enlarge  the  time  therefor 
if  good  cause  is  sliown.^^  When  a  plea  has  been  filed,  it 
is  good  practice  in  equity,  where  the  docket  is  not  so 
closely  watched  as  at  law,  to  give  notice  of  the  fact  to  the 
plaintiff's  counsel,  and  to  furnish  him  with  a  copy  of  the 
plea.^° 

In  default  of  any  defence  either  by  plea,  demurrer  or 
answer,  the  bill  will  be  taken  pro  confesso,  but  the  decree 
pro  confesso  may  usually  be  opened  on  motion  of  defend- 
ant within  a  certain  time  thereafter.^*^  As  a  general  rule, 
after  a  plea  has  been  filed  neither  party  can  take  a  step 
in  the  cause  until  some  disposition  has  been  made  of  the 
plea.^^ 

§  254.  Setting  plea  for  argument.  When  a  plea  has 
been  filed,  two  courses  are  open  to  the  plaintiff:  either 
to  admit  the  averments  of  the  plea  and  test  its  sufficiency, 
or  to  reply  to  it  and  deny  its  averments,^^    If  the  plain- 


44.  This  time  is  the  same  as  that 
limited  for  filing  demurrers.  See 
the  statutes  and  rules  cited  above, 
Chapter  XI,  Sec.  238,  note  70,  ante, 
p.  415. 

A  party  has  no  constitutional 
right  to  file  a  plea  after  the  proper 
time.  The  discretion  of  the  court 
is  not  subject  to  exception.  Eeed 
V.  Canal  Co.,  65  Me.  132  (1876). 

A  plea  filed  out  of  time  should 
not  be  treated  as  a  nullity;  an 
order  for  striking  it  off  should  be 
asked  for.  Ewing  v.  Blight,  3 
Wall.  Jr.  134,  F.  C.  4589  (C.  C. 
1855). 

45.  By  Equity  Eule  3  of  Flor- 
ida, no  notice  of  filing  is  necessary 
unless  ordered  especially  by  the 
judge,  and  in  any  case  notice  to 
solicitor  is  equivalent  to  notice  to 
the  party,  unless  otherwise  espe- 
cially ordered.  But  by  Equity 
Rule  91  of  New  Hampshire,  copy 
should   be    delivered   to   the   plain- 


tiff's solicitor.  By  Equity  Rule 
31  of  Delaware,  the  register  serves 
a  copy  of  the  plea  on  plaintiff's 
solicitor. 

46.  See  Chapter  IX,  ante,  pp.  370 
et  seq. 

47.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
692;  Buchanan  v.  Hodgson,  11 
Beat.   (Ir.  Ch.)   368. 

48.  In  Delaware,  the  plea  is 
taken  for  true  in  fact  and  stands  for 
argument  at  the  next  term  unless 
a  replication  is  filed  within  thirty 
days  after  service  of  the  plea  by 
the  register.  Eq.  Rule  31.  In 
Rhode  Island,  the  cause  is  consid- 
ered set  for  argument  if  no  reply 
is  filed  within  ten  days  after  plea 
filed.     G.  L.,  Ch.  289,  See.  8. 

In  Florida,  if  the  plaintiff  does 
not  reply  or  set  the  plea  for  argu- 
ment by  the  next  rule  day  after  it 
is  filed,  he  is  held  to  admit  its 
sufficiency,  and  the  bill  may  be 
dismissed,    unless    the    court    gives 


440  EQUITY  PRACTICE 

tiff  believes  the  plea  to  be  insufficient  even  if  true,  the 
proper  way  to  test  the  point  is  to  make  a  motion  to  have 
the  plea  set  for  argument  ^^  as  it  stands.  This  is  then 
ordered  by  the  court  as  a  matter  of  course,  and  an  entry 
is  made  on  the  equity  docket  *  *  Cause  set  for  argument  on 
bill  and  plea,"  adding  the  date  of  the  hearing.  The 
usual  written  notice  of  the  fact  should  then  be  given  by 
the  plaintiff's  counsel  to  the  counsel  on  the  other  side 
in  the  manner  indicated  by  the  rules  of  court.  The  effect 
of  thus  setting  a  plea  for  argument  to  test  its  sufficiency 
is  the  same  as  if  the  plaintiff  had  demurred  to  the  plea. 
That  is,  every  averment  of  the  plea  must  be  taken  as 
time,  and  conversely,  for  the  purpose  of  the  hearing  upon 
argument  of  the  plea,  every  allegation  in  the  bill  not 
denied  by  the  plea  or  the  answer  in  support  of  it  must 
be  taken  as  true.*''^ 

§  255.  Setting  plea  for  hearing  on  replication.  If  how- 
ever the  plaintiff"  believes  that  the  plea  though  sufficient 
on  its  face  is  not  true  in  fact,  his  proper  course  is  to 

him    further    time.      Eq.    Rule    55;  Vermont.     Eq.  Rule  15. 

G.  S.,  Sec.  1876.  Virginia.     Code,  Sec.  3273. 

In  Vermont  the  bill  may  be  dis-  West  Virginia.     Code  1913,  Sec. 

missed  if  the  plaintiff  within   ten  4784. 

days  does  not  reply  or  set  the  case  In  Maryland  the  defendant  may 

for  argument.     Eq.  Rule  15.  set   the   plea  for   argument   if   the 

49.  Alabama.    New    Decatur    v.  plaintiff   neglects   to    do   so   or   to 

Shafenberg,    147   Ala.    367    (1905);  reply.     Code,  Art.  16,  Sec.  151;  Eq. 

Glaser  v.  Meyrowitz,  119  Ala.   152  Rule  20.     In  New  Jersey  the  per- 

(1897).  son  making  the  plea  sets  the  case 

Florida.      G.    S.,   Sec.    1872;    Eq.  for  argument  at  the  next  term,  by 

Rule    50.  motion,  within  ten  days  after  plea 

Maine.     Eq.  Rule  22.  filed.    Comp.  St.,  "Chancery,"  See. 

Maryland.      Code,    Art.    16,   See.  20. 

150;   Eq.   Rule   19.  A  plea  of  another  suit  pending 

Michigan.     Eq.  Rule  8;  Davis  v.  may  be  referred  at  once  to  a  mas- 

McCammon,  168  Mich.  587   (1912).  ter.     See  Sec.  246,  ante,  p.  430. 

Mississippi.     Code,  Sec.  592.  50.  Foster  v.  Foster,  51   Vt.  216 

New  Jersey.    Comp.  St.,  "Chanc-  (1878);  Rhode  Island  v.  Massachu- 

ery,"  Sec.  20,  setts,    14    Pet.    211,    10   L.    ed.   423 

Tennessee.     Code,     Sees.     6203,  (1840). 
6204. 


PLEAS 


441 


file  a  replication  to  it,  and  take  issue  upon  it,  as  in  case 
of  an  answer,  putting  the  defendant  to  establish  it  by 
proof  which  may  be  met  by  evidence  offered  by  the  plain- 
tiff to  disprove  the  plea.^^     Statutes  sometimes  provide 


When  a  plea  is  set  for  argument, 
the  court  will  decide  the  case 
solely  on  bill  and  plea,  and  will 
not  even  consult  papers  on  file  in 
the  case  not  incorporated  in  bill 
or  plea.  Gilson  v.  Appleby,  78  Atl. 
668  (N.  J.  E.  1911).  It  is  stated 
in  Suydam  v.  Johnson,  16  N.  J.  E. 
112  (1863),  that  setting  a  plea  for 
argument  raises  the  question  of  its 
sufficiency  in  form  as  well  as  in 
substance,  but  this  is  not  generally 
law. 

Setting  a  plea  for  argument  ad- 
mits facts,  not  conclusions  pleaded. 
United  States  v.  Dallas,  etc.,  Co., 
140  U.  S.  599,  35  L.  ed.  560  (1891). 

Averments  and  allegations  are, 
however,  only  taken  as  true  for  the 
purpose  of  deciding  upon  the  suffi- 
ciency of  the  plea,  and  their  truth 
in  fact  may  usually  be  tried  subse- 
quently.    See  note  54,  post,  p.  442. 

A  motion  to  strike  the  plea  for 
insufficiency  is  equivalent  to  a  mo- 
tion to  set  the  plea  for  argument. 
Cook  v.  Cook,  87  Atl.  120  (N.  J.  E. 
1913). 

Occasionally  the  courts  informal- 
ly allow  the  sufficiency  of  a  plea 
to  be  tried  on  a  so-called  ' '  demur- 
rer" to  a  plea.  Freeman  v.  Pullen, 
119  Ala.  235  (1898);  Miller  v. 
Doran,  151  111.  App.  527  (1909); 
Eouskolp  V.  Kershner,  49  Md.  516 
(1878);  Kidd  v.  New  Haven,  etc., 
Co.,  72  N.  H.  273,  66  L.  E.  A.  574 
(1903);  Witt  V.  Ellis,  2  Cold. 
(Tenn.)  38  (1865);  McVeagh  v. 
Denver,  etc.,  Waterworks,  85  Fed. 
74,  29  C.  C.  A.  33  (1897) ;  Zimmer- 


man V.  So  Relle,  80  Fed.  417,  25 
C.  C.  A.  518  (1897). 

And  occasionally  the  courts  in- 
formally allow  the  sufficiency  of  a 
plea  to  be  tested  on  a  motion  to 
strike  it  off.  Breeding  v.  Grant- 
land,  135  Ala.  497  (1902);  Adair  v. 
Feder,  133  Ala.  620  (1901);  Sims 
V.  United  Wireless  Tel.  Co.,  179 
Fed.  540  (C.  C.  1910),  plea  bad  for 
multifariousness;  Knox  Co.  v.  Rair- 
don  Co.,  87  Fed.  969  (C.  C.  1898); 
Merc.  Ins.  Co.  v.  Missouri,  etc.,  R. 
Co.,  84  Fed.  379  (C.  C.  1898);  Hunt- 
ington V.  Laidley,  79  Fed.  865  (C. 
C.  1897);  Switch  Co.  v.  Philadel- 
phia, etc.,  R.  Co.,  69  Fed.  833  (C.  C. 
1895).  This  practice  is  disapproved 
in  Corlies  v.  Corlies,  23  N.  J.  E. 
197  (1872);  Armengaud  v.  Coudert, 
27  Fed.  247  (C.  C.  1886). 

51.  Florida.     Eq.  Rule  50. 

Maryland.  Code,  Art.  16,  See. 
151;   Eq.   Rule   19. 

Michigan.     Eq.  Rule  8. 

Mississippi.     Code,  Sec.  592. 

New  Jersey.  Comp.  St.,  "Chan- 
cery," Sec.  24;  Eq.  Rule  13. 

Tennessee.     Code,  Sec.  6203. 

Vermont.     Eq.  Rule  15. 

United  States  (under  the  former 
practice).  Farley  v.  Kitson,  120 
U.  S.  303,  30  L.  ed.  684  (1886); 
Daniels  v.  Benedict,  97  Fed.  367 
(C.   C.   A.   1899). 

The  issue  upon  a  plea  may  be 
submitted  to  a  jury.  Virginia 
Code,  Sec.  3274;  West  Virginia 
Code  1913,  Sec.  4785. 

A  "special  replication"  to  a 
plea  will  be  struck  out  on  motion. 


442  EQUITY  PRACTICE 

that  such  hearing  shall  not  take  place  until  the  lapse  of  a 
certain  time  from  the  filing  of  the  replication.'"- 

When  the  cause  is  thus  set  for  hearing,  it  should  be 
entered  on  the  docket  in  the  same  manner  as  when  set 
for  argument,  indicated  above,  and  notice  thereof  given 
in  like  manner.  The  effect  of  thus  setting  a  plea  for 
hearing  on  replication  is  to  admit  the  sufficiency  of  the 
plea  if  true.^^ 

§  256.  Allowing  pleas  on  argument.  If  the  plea  is 
allowed  on  argument,  it  is  thereby  held  to  be  a  full  bar 
to  so  much  of  the  bill  as  it  covers,  provided  it  be  true  in 
fact.  Therefore,  although  the  plea  has. been  allowed  on 
argument  as  sufficient  on  its  face,  if  the  plaintiff  believes 
it  to  be  untrue,  he  may  still  take  issue  ,upon  it,  and  put 
the  defendant  to  establish  it  by  proof,  by  filing  a  replica- 
tion ^^  and  proceeding  as  indicated  in  the  preceding  sec- 
tion, just  as  if  he  had  set  the  plea  for  hearing  on  replica- 
tion instead  of  for  argument  in  the  first  instance. 

On  the  argument  of  the  plea  the  court  will  sometimes 
save  the  benefit  of  the  plea  to  the  hearing,  that  is,  give 
the  plaintiff  an  opportunity  of  replying  and  going  into 
evidence  without  overruling  the  plea,  where  the  court 
thinks  that  although  the  plea  may  be  strictly  true,  there 
may  be  matter  disclosed  in  evidence  which  would  avoid 
it.^^  Sometimes,  also,  if  the  court  upon  argument  con- 
Mason  V.  Hartford,  etc.,  Co.,  10  ery,"  Sec.  24,  at  the  next  term 
Fed.  334  (C.  C.  1882).  after   replication   filed. 

In      Alabama,      replications      to  ^3.  See    the    rules    and    statutes 

pleas  are  unnecessary,  whether  or       '''^^^  ^^  "«*«  ^1,  wite,  p.  441. 
not   the  pleas   are  incorporated   in  54.  Wilson    v.    Mitchell,   43   Fla. 

answers.     See   Chapter   XVI,   note       107  (1901) ;  York  Mfg.  Co.  v.  Cutts, 
1   post   p   512  '^  ^^®-  ^04  (1841);  United  States  v. 

'  ^*        ■  Dallas,  etc.,  Co.,  140  U.  S.  599,  35 

52.  Maine.  E.  S.,  Ch.  79,  Sec.  j^  g^^_  gg^  (jgOl);  Chicago,  etc.,  E. 
19;  Acts  of  1909,  Ch.  170;  Acts  of  ^^_  ^_  ^y^jj^  ^^.^  j,^,j  95g  (C.  C.  A. 
1911,  Ch.  25;  thirty  days,  except  j^^jj^.  MacVeagh  v.  Denver,  etc., 
by  consent,  after  which  time  the  Waterworks  Co.,  85  Fed.  74,  29  C. 
court  may  set  the  hearing  at  any  ^  ^  33  (i897).  And  see  Equity 
date  in  its  discretion.  p^,,g  8  ^^  Michigan. 

New  Jersey.    Comp.  St.,  "Chanc-  55.  Hancock  v.  Carlton,  6  Gray 


PLEAS 


443 


siders  that  the  matter  offered  by  way  of  plea  may  be  a 
defence  or  part  of  a  defence,  but  that  it  has  been 
informally  pleaded,  it  will  in  such  case  instead  of  over- 
ruling the  plea  order  it  to  stand  for  an  answer.^*^ 

When  a  plea  has  been  allowed  on  argument  the  plaintiff 
may,  in  the  discretion  of  the  court,  be  permitted  to  amend 
the  bill." 

§  257.  Allowing  pleas  on  replication.  Where  the  plain- 
tiff has  filed  a  replication  to  a  plea,  either  in  the  first  in- 
stance or  after  a  plea  has  been  allowed  on  argument,  if 
the  facts  relied  upon  by  the  plea  are  proved,  and  the  plea 
allowed,  in  general  chancery  practice  a  dismissal  of  the 
bill  on  the  hearing  was  a  matter  of  course,^^  and  the  suit 


(Mass.)  39  (1856);  Dietrich  v. 
Deavitt,  81  Vt.  160  (1908);  Dobson 
V.  Peck  Bros.  &  Co.,  103  Fed.  904 
(C.  C.  1900);  Chisholm  v.  Johnson, 
84  Fed.  384  (C.  C.  1898). 

56.  Bell  V,  Woodward,  42  N.  H. 
181  (1860);  see  also  Ewald  v.  Or- 
tynsky,  77  N.  J.  E.  76  (1910). 

If  the  plea  is  ordered  to  stand 
for  an  answer,  it  is  allowed  to  be 
a  sufficient  answer  to  so  much  of 
the  bill  as  it  covers,  unless  by  that 
order,  permission  is  given  to  tho 
plaintiff  to  except.  Kirby  v.  Tay- 
lor, 6  Johns.  Ch.  (N.  Y.)  242 
(1822). 

57.  Florida.     Eq.  Rule  52. 
Maryland.     Code,   Art.    16,   Sec. 

152;  Eq.  Rule  21. 

Michigan,     Eq.  Rule  8. 

Pennsylvania.    Eq.  Rule  35. 

Vermont.  Eq.  Rule  17;  Ainger 
V.  Webster,  85  Vt.  446  (1912). 

These  rules  do  not  distinguish 
in  this  respect  between  pleas  sus- 
tained on  argument  or  at  a  hearing 
on  replication;  and  allow  costs  to 
the  defendant.  See  Chapter  XVII, 
Sec.  308,  post,  p.  527;  Chapter 
XXIX,  post,  p.  877. 


By  Equity  Rule  14  of  Maine  no 
amendment  on  account  of  a  plea 
shall  be  allowed  except  on  terms, 
unless  the  plea  has  been  set  for 
hearing  before  a  single  justice  of 
the  court  "so  that  amendments 
may  speedily  be  had." 

58.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
695,  697,  citing  Harris  v.  Ingle- 
dew,  3  P.  Wms.  94;  Daniels  v.  Tag- 
gart,  1  G.  &  J.  (Md.)  311  (1829); 
Meeker  v.  Marsh,  Saxt.  (N.  J.) 
198  (1831);  Flagg  v.  Bonnel,  10 
N.  J.  E.  82  (1854);  Dows  v.  Mc- 
Michael,  2  Paige  (N.  Y.)  345 
(1831),  6  Paige  (N.  Y.)  139 
(1836);  Fish  v.  Miller,  5  Paige 
(N.  Y.)  26  (1834);  Bogardus  v. 
Trinity  Ch.,  4  Paige  (N.  Y.)  178 
(1833). 

Modern  cases  to  the  same  effect 
are  these:  Phillips  v.  Birming- 
ham, etc.,  Co.,  60  So.  896  (Ala. 
1913);  Holloway  v.  So.  Bldg.,  etc., 
Assn.,  136  Ala.  160  (1902);  Tyson 
V.  Decatur  Land  Co.,  121  Ala.  414 
(1898),  plea  in  answer;  Perry  v. 
United  States,  etc.,  Co.,  232  111. 
101  (1907);  Hunt  v.  West  Jersey, 
etc.,  Co.,  62  N.  J.  E.  225   (1901); 


444  EQUITY  PRACTICE 

was  thereby  baiTed  as  to  so  much  as  was  covered  by  the 
plea,  even  though  the  plea  on  its  face  was  not  good  either 
in  point  of  form  or  substance,  since  a  replication  to  the 
plea  admits  its  sufficiency  as  much  as  if  it  had  been 
allowed  on  argument.  But  under  the  modern  rules  in 
many  states,  the  proof  of  the  truth  of  the  plea  at  the  hear- 
ing avails  the  defendant  only  so  far  as  in  law  and  equity 
it  ought  to  avail  him,  and  dismissal  of  the  bill  does  not 
follow  as  of  course  upon  the  proof  of  the  defendant's 
IDlea/""'^  In  these  state  it  is  usual  to  allow  the  plaintiff  to 
amend' his  bill  if  he  wishes,  when  the  plea  has  been  sus- 
tained; although  costs  will  usually  be  awarded  against 
him/'*^ 

§  258.  Overruling  pleas  on  argument.  If  the  court 
upon  argument  is  of  the  opinion  that  the  plea  cannot 
under  any  circumstances  be  made  use  of  as  a  defence, 
it  is  then  overruled.  The  effect  of  thus  overruling  a  plea 
is  to  impose  upon  the  defendant  the  necessity  of  making 
a  new  defence.*^^    This  he  may  usually  do  either  by  a  new 

Horn  V.  Detroit,  etc.,  Co.,  150  IT.  S.  Maryland.      Cofle,   Art.    16,   Sec. 

610,  37  L.  ed.  1199  (1893);  Daniels  150;   Eq.  Rule  19. 

V.  Benedict,  97  Fed.  367  (C.  C.  A.  Michigan.     Eq.  Rule  8. 

1899).     Some  of  these  cases  have  New  Jersey.    Eq.  Rule  209  (a). 

later  been   overruled  by  decisions  Vermont.     Eq.  Rule  15. 

or  statutes.     See  note  59,  post.  United  States  (prior  to  the  1913 

Upon   the   dismissal   of   the   bill,  rules).     Green  v.  Bogue,  158  U.  S. 

costs  follow  for  the   defendant  as  478,  39  L.  ed.  1061   (1895);  Pearce 

in  other  cases  where  bills  are  dis-  v.  Rice,  142  U.  S.  28,  38  L.  ed.  925 

missed.     See  Chapter  XXIX,  post,  (1891),     former     Federal     Equity 

pp.  869  et  seq.  Rule  33. 

59.  Alabama.      Code,    Sec.    3115,  Even  under  these  rules,  however, 

This  section  applies  both  to  sepa-  the  bill  may  still  be  dismissed  if  the 

rate  pleas  and  to  pleas  inserted  in  plea  which  is  proved  on  the  hear- 

answers.    State  v.  Benners,  172  Ala.  ing    meets    the     plaintiff's     whole 

168    (1911).      But    apparently    not  case.    Jones  v.  Hillis,  100  Fed.  355 

to  cases  where  a  plea  good  in  sub-  (C.  C.  1900). 

stance  is  sustained  on  replication.  60.  See   the    rules   cited   in   note 

Phillips  V.  Birmingham  Co.,  60  So.  57,  ante,  p.  443,  and  Chapter  XXIX, 

896   (Ala.  1913).  post,  p.  877. 

Florida.     G.   S.,   Sec.    1872;    Eq.  61.  Alabama.    Supreme  Lodge  v. 

Rule   50;    Theisen   v.   Whiddon,   53  Wing,  131  Ala.  395   (1901). 

So.  642  (Fla.  1910).  Florida.    Eq.  Rule  51;  Spaulding 


PLEAS 


445 


plea  or  an  answer,''^  and  the  proceedings  upon  the  new 
defence  will  be  the  same  as  if  it  had  been  originally  made, 
but  the  new  plea  must  not  be  ujDon  the  same  ground  as  the 
first,  nor  can  a  ground  of  defence  raised  by  plea  and  over- 
ruled on  the  merits  afterwards  be  sustained  in  another 
form  in  subsequent  pleadings  in  the  same  cause.^^  Where 
there  is  an  apparent  good  ground  of  defence  disclosed  by 
the  plea,  but  owing  to  some  mistake  it  has  been  inform- 


V.  Ellsworth,  39  Fla.  76  (1897). 
The  plaintiff  has  costs  unless  there 
was  good  ground  for  the  plea. 
Ibid. 

Maryland.  Code,  Art.  16,  Sec. 
153;  Eq.  Rule  22.  Decree  pro  con- 
fesso  will  issue  if  the  court  ou 
overruling  the  plea  finds  it  frivo- 
lous or  interposed  for  vexation  or 
delay.    Ibid. 

IMichigan.  Eq.  Eule  8.  It  is  ir- 
regular to  proceed  with  the  cause 
until  the  order  overruling  the  plea 
has  been  entered.  Connor  v. 
Jochen, 171  Mich.  69  (1912). 

New  Jersey.  Comp.  St.,  "Chanc- 
ery," Sec.  24;  Gilson  v.  Appleby, 
78  Atl.  668  (N.  J.  E.  1911),  here 
the  court  allowed  the  plea  to  be 
amended,  though  stated  this  to  be 
unusual. 

Bhode  Island.  Barnes  v.  N.  Roy 
&  Son,  27  R.  I.  534  (1906),  dictum 
that  it  is  unusual  to  permit  the 
defendant  to  answer  over. 

Tennessee.  Code,  Sec.  6205: 
Sewell  V.  Tuthill,  112  Tenn.  271 
(1904). 

Virginia.     Code,  Sec.  3273. 

West  Virginia.  Code  1913,  Sec. 
4784. 

United  States  (prior  to  the  1913 
rules).  Rhode  Island  v.  Massachu- 
setts, 14  Pet.  211,  10  L.  ed.  423 
(1840) ;  Jahn  v.  Champagne  Lum- 
ber Co.,  152  Fed.  669  (C.  C.  1907); 
former  Federal  Equity  Rule  34. 


Decree  pro  confesso  will  be  en- 
tered if  the  defendant  neglects  to 
answer  over.  See  Chapter  IX, 
"Pro  Confesso,"  Sec.  188,  ante,  pp. 
358  et  seq. 

If  a  plea  is  partly  good  and  part- 
ly bad,  the  court  may  order  defend- 
ant to  file  an  answer.  Rhino  v. 
Emery,  79  Fed.  483  (C.  C.  1897). 

If  the  defendant  elects  to  stand 
by  his  plea,  after  it  has  been  held 
insufficient,  judgment  will  be  en- 
tered for  the  plaintiff.  Gage  v. 
Herbert,  145  111.  530  (1892). 

As  to  costs,  see  Chapter  XXIX, 
post,  pp.  867  et  seq. 

62.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
702.  Or  in  general  chancery  prac- 
tice by  demurrer.  East  India  Co. 
V.  Campbell,  1  Ves.  Sr.  246. 

But  in  Florida,  Massachusetts, 
New  Jersey,  Tennessee,  Virginia 
and  West  Virginia  no  second  plea 
or  demurrer  may  be  filed  after  the 
first  has  been  overruled.  Florida 
G.  S.,  Sec.  1873;  Massachusetts 
Eq.  Rule  11;  New  Jersey,  Comp 
St.,  "Chancery,"  Sec.  24;  Tenncs 
see,  Code,  Sec.  3273;  Virginia 
Code,  Sec.  3273;  West  Virginia 
Code  1913,  Sec.  4785. 

63.  Foster  v.  Foster,  51  Vt.  216 
(1878);  Miller  v.  Rickey,  146  Fed. 
574  (C.  C.  1906);  Pentlarge  v. 
Pentlarge,  22  Fed.  412  (C.  C.  1884). 


446 


EQUITY  PRACTICE 


ally  pleaded,  the  court  will  in  its  discretion  allow  tlie 
defendant  to  amend  liis  plea,  or  to  file  a  new  plea  upon 
the  same  ground.*^^  The  defendant  cannot  avoid  making 
a  new  defence  by  taking  exceptions  to  the  overruling  of 
the  plea,  in  most  states,  for  the  case  proceeds  to  final 
decree  and  then  on  apjDcal  all  interlocutory  rulings  are 
open,  and  the  decision  of  the  upper  court  on  the  whole 
record  terminates  the  cause.^^ 

§  259.  Overruling  pleas  on  replication.  If  on  replica- 
tion and  hearing  the  plea  is  found  to  be  untinie,  the  plain- 
tiff in  general  chancery  practice  is  entitled  to  a  decree  as 
if  all  allegations  in  the  bill  had  been  admitted ;  ^'^  but 
under  the  rules  of  some  states  is  entitled  only  to  prevail 
as  far  as  in  law  and  equity  he  should,*^^  which  leaves  the 
matter  of  further  proceedings  to  the  discretion  of  the 
court. 


64.  Gilson  v.  Appleby,  78  N.  J. 
E.  96   (1911). 

65.  See  Chapter  XXVIII,  "Ap- 
peals," Sec.  511,  post,'  p.  850. 

66.  Michigan.     Eq.  Rule  8. 

New  Jersey.  Miller  v.  U.  S.  Cas- 
ualty Co.,  61  N.  J.  E.  110  (1900); 
Flagg  V.  Boimel,  10  N.  J.  E.  82 
(1854).  But  compare,  contra,  Eq. 
Rule  209a,  adopted  1910,  cited  in 
note  67,  post. 

New  York.  Dows  v.  McMichael, 
2  Paige  3-45   (18;U). 

Tennessee.     Code,  Sec.  6203. 

Vermont.     Eq.  Rule  16. 

United  States  (prior  to  1913 
rules).  Kennedy  v.  Cresswell,  101 
U.  S.  641,  25  L.  ed.  1075  (1879); 
Eagle  Oil  Co.  v.  Vacuum  Oil  Co., 
162  Fed.  671,  89  C.  C.  A.  463 
(1908),  aff.  154  Fed.  867,  here  plea 
covered  one  part  of  bill,  answer 
covered  rest  of  bill.  Formerly 
in  the  Federal  courts,  if  on  an  issue 
of  fact  under  a  plea  the  finding 
was    in    part    for    each    party,    the 


defendant  was  entitled  to  the  bene- 
fit  of  the  facts  found  in  his  favor 
when  the  decree  for  the  plaintiff 
upon  the  rest  of  the  bill  was  drawn 
up.  Earll  V.  Metropolitan,  etc.,  R. 
Co.,  87  Fed.  528  (C.  C.  1898). 

67.  This  is  expressly  so  by  New 
Jersey,  Eq.  Rule  209a;  and  is  im- 
pliedly so  by  nearly  all  the  rules 
cited  in  note  61,  ante,  p.  444. 

Even  in  general  chancery  prac- 
tice the  court,  although  satisfied 
upon  an  issue  that  the  plea  was 
untrue  in  fact,  might  instead  of 
formally  overruling  the  plea  and 
decreeing  for  the  plaintiff,  order 
the  defendant  to  answer  over. 
Ewald  V.  Ortynsky,  77  N.  J.  E.  76 
(1910);  Sewell  v.  Tuthill,  112  Tenn. 
271  (1904);  Farley  v.  Kitson,  120 
U.  S.  303,  30  L.  ed.  684  (1886); 
Westervelt  v.  Library  Bureau,  118 
Fed.  824,  55  C.  C.  A.  436  (1902); 
Soderberg  v.  Armstrong,  116  Fed. 
709    (C.  C.  1902). 


CHAPTER  XIII 

ANSWERS 

§  260.  General  nature  of  an  answer.  The  most  usual 
method  of  defence  to  a  bill  is  by  answer.  The  function  of 
an  answer  in  general  chancery  practice  depends  upon 
the  object  of  the  bill  to  be  answered.  Formerly  nearly 
all  bills  in  equity  were  obliged  to  contain  some  element  of 
discovery,  on  account  of  the  inability  of  the  plaintiff  to 
examine  the  defendant  and  obtain  information  solely 
within  the  latter 's  personal  knowledge  in  any  other  way. 
There  was  the  pure  bill  of  discovery  in  aid  of  an  action 
at  law;  the  bill  for  discovery  and  consequent  relief;  and 
the  common  bill  for  relief  with  incidental  discovery  ob- 
tained from  answers  to  interrogatories.  A  pure  bill  for 
relief  without  any  such  incidental  discovery  was  not  suffi- 
cient, and  it  was  almost  the  universal  practice  for  bills 
for  relief  to  contain  an  interrogatory  part,  or  else  inter- 
rogatories annexed  or  filed  with  the  bill.  Consequently, 
the  answer  to  a  pure  bill  of  discovery  served  the  single 
function  of  affording  an  examination  of  the  defendant  on 
oath,  while  the  answer  to  nearly  every  bill  in  equity  seek- 
ing relief,  since  the  bill  also  sought  discovery,  had  a  two- 
fold function,  first  to  afford  the  information  required  by 
the  plaintiff's  interrogatories,  and  secondly  to  state  the 
defendant's  ground  of  defence  to  the  plaintiff's  charges. 
But  since  the  defendant  is  now  almost  universally  allowed 
by  statute  to  be  examined  on  oath  as  a  witness,  discovery 
has  become  obsolete  in  practice,  whether  in  aid  of  an 
action  at  law,  or  as  incidental  merely  to  a  bill  for  relief, 
and  both  the  interrogatory  part  of  a  bill  and  separate 

447 


us  EQUITY  PRACTICE 

interrogatories  have  sunk  largely  into  disuse.^  Conse- 
quently the  pure  bill  for  relief  is  today  the  only  bill  usu- 
ally required,  except  perhaps  under  some  special  circum- 
stances, and  the  answer  to  such  bill  has  but  one  function, 
viz.,  the  second  of  the  two  above  mentioned,  to  state  the 
defendant's  ground  of  defence  to  the  allegations  of  the 
plaintiff's  bill.  In  other  words,  the  ordinary  function 
of  an  answer  in  equity  today  is  that  of  a  defensive  plead- 
ing merely,  and  not  a  discovery  of  evidence. 

This  function  of  an  answer  as  a  mere  pleading  in 
defence  is  performed  in  two  ways;  by  denial  of  the  truth 
of  the  allegations  of  the  bill  or  some  of  them,  and  by 
setting  up  new  matter  available  as  a  defence  either  in 
addition  to  such  denials  or  in  avoidance  of  those  allega- 
tions which  are  not  denied. 

An  answer  may  also  admit  the  truth  of  the  allegations 
of  the  bill  and  submit  the  questions  arising  on  the  case 
thus  made  to  the  judgment  of  the  court.-  Answers  may 
be  to  the  whole  bill  or  to  that  part  not  covered  by  demur- 
rer or  plea,  or  maj"  be  in  support  of  a  plea ;  and  when  the 
defendant  has  demurred  or  pleaded  to  one  part  of  the 
bill  he  should  answer  to  the  rest  ^  and  in  some  form  meet 
the  whole  bill. 

§261.  Defences  available  in  an  answer.  A  defendant 
should  set  u})  in  his  answer  every  fact  upon  which  he 
intends  to  rely  as  a  ground  of  defence,  because  in  strict- 
ness he  cannot  avail  himself  of  any  matter  in  defence 
which  is  not  stated  in  the  answer,  even  though  it  should 
appear  in  evidence.^    It  may  be  stated  as  a  general  rule 

1.  See  Chapter  V,  notes  2  and  7,  Illinois.  Kelmer  v.  Mott,  187  111. 
ante,  pp.  158,  160.                                       519    (1900);    Welder    v.    Clark,    27 

2.  Story's    Eq.    PI.     (10th    ed.).       111.  251    (1862). 

Sec.   849,   citing  Mitf.   Eq.   PI.   by  jjg^    Hampshire.      Hollister    v. 

Jeremy,   15,  16.  Barklev,  11  X.  H.  501  (1841). 

3.  Graves  v.  Blondell,  70  Me.  '  .  ^  „ 
IQO   nS-O^t                                                         ^®'"'  '^^'^^^y*     ^^arsh  V.  Mitchell, 

4.  Alabama.  Gamble    v.    Ault-       ^6  X.  J.  E.  497   (1875). 

man,  125  Ala.  372   (1899);   Robin-  Pennsylvania.      Harvey  v.  Lance, 

son  V.  Moseley,  93  Ala.  70   (1890).       1  Luz.  Leg.  Obs.  315  (Pa.  1861). 


ANSWERS 


449 


that  a  defendant  can  avail  himself  in  his  answer  of  every 
ground  of  defence  which  he  could  use  by  way  of  demurrer 
or  plea  ^  and  of  any  other  matters  which  he  desires  to 


Vermont,  Warren  v.  Warren,  30 
Vt.  530   (1859). 

Nor  can  evidential  facts  which 
have  been  offered  under  one  de- 
fence be  used  for  making  out  a 
new  defence.  Bannister  v.  Miller, 
54  N.  J.  E.  121   (1895). 

Facts  admitted  by  the  answer 
cannot  be  contradicted  by  evi- 
dence offered  by  the  defendant. 
Lainhart  v.  Burr,  49  Pla.  315 
(1905);  Weider  v.  Clark,  27  111.  251 
(1862). 

5.  This  is  expressly  true  by  the 
following  statutes  and  rules,  which 
further  provide  that  the  defend- 
ant shall  have  the  same  benefit 
from  such  matter  in  his  answer  as 
from  demurrer  or  plea  therefor; 
i.  e.,  he  may  be  excused  from  an- 
swering fully  where  he  might  so 
protect  himself  by  filing  the  same 
matter  in  the  form  of  a  plea  or  de- 
murrer. 

Alabama.    Code,  Sec.  3115. 

Florida.  Eq.  Eules  57,  58;  G.  S., 
Sec.  1871. 

Maine.     Eq.  Eule  14. 

Maryland.  Code,  Art.  16,  Sec. 
155;  Eq.  Eule  23. 

Massachusetts.     Eq.  Eule  13. 

New  Hampshire.    Eq.  Eule  86. 

Pennsylvania.     Eq.  Eule  37. 

Rhode  Island.     Eq.  Eules  22,  23. 

Tennessee.  Code,  Sees.  6128, 
6129. 

Vermont.  Eq.  Eule  15;  see  also 
Eq.  Eule  20. 

United  States.  Eq.  Eule  29. 
This  rule  abolishes  pleas  and  de- 
murrers in  the  Federal  practice. 

In  general  chancery  practice, 
Whltehouse  E.  P.  Vol.  I — 29 


however,  the  same  rule  has  been 
stated.     Cooper  Eq.  PI.  312;   Mitf. 

Eq.    PI.    by   Jeremy,    209;    v. 

Harrison,  4  Madd.  252.  In  Story's 
Eq.  PI.  (10th  ed.).  Sec.  847,  it  is 
said  that  "it  is  very  far  from 
being  generally  true  as  sometimes 
stated  in  the  books  that  a  defend- 
ant may  by  answer  avail  himself 
of  and  insist  upon  every  ground  of 
defence  which  he  could  use  by  way 
of  demurrer  or  of  plea  to  the  bill," 
on  the  ground  that  the  defendant 
cannot  in  this  way  avoid  making 
a  full  answer  of  discovery,  and 
so  for  example  canfoot  by  answer 
set  up  as  an  answer  to  a  bill  for 
discovery  and  relief  simply  that  he 
is  a  bona  fide  purchaser  for  a  val- 
uable consideration  but  must  do 
it  by  plea.  It  is  indeed  true  that 
in  the  few  jurisdictions  which  do 
not  have  an  express  provision  of 
statute  or  rules  covering  the  point 
(see  rules  and  statutes  cited  above 
in  this  note),  he  must  make  such 
a  defence  by  plea  if  he  would  avoid 
answering  fully:  but  the  defend- 
ant may  be  entirely  willing  to  an- 
swer fully,  and  indeed  he  may  pre- 
fer to  add  additional  circum- 
stances favorable  to  his  case  which 
he  could  not  add  to  a  plea,  and  in 
such  case  he  may  insist  upon  the 
defence  of  a  bona  -fide  purchaser 
for  value  (Dan.  Ch.  Pr.,  (6th  Am. 
ed.),  p.  714;  Eorer  Iron  Co.  v. 
Trout,  83  Va.  397  (1887)),  or  any 
other  ground  available  by  demurrer 
or  plea,  so  long  as  he  also  answers 
each  paragraph  of  the  bill.  Con- 
sequently, the  only  advantage  he 
cannot    insist   upon   in   an    answer 


450 


EQUITY  PRACTICE 


insert  in  addition,  and  may  join  all  such  defences  in  one 
answer,  provided  they  all  arise  out  of  the  same  state  of 
facts  and  are  not  inconsistent  with  each  other.^ 

Thus  instead  of  demurring  formally  to  the  bill,  the 
defendant  may  by  his  answer  admit  the  truth  of  the  bill 
and  submit  the  case  made  by  it  to  the  court,  in  effect 
demurring  generally  to  the  bill  for  want  of  equity;"^  or 
he  may  point  out  in  his  answer  special  grounds  ^  which 
he  might  have  raised  on  demurrer;  and  he  will  then  at  the 
hearing,  but  not  otherwise,  be  entitled  to  all  the  advan- 
tages from  the  answer  which  he  would  have  had  by  formal 
demurrer.^    But  the  ground  of  multifariousness,  though 


even  in  these  jurisdictions  is  that 
of  avoiding  a  full  answer  of  dis- 
covery, and  this  is  not  properly 
called  a  ground  of  defence.  It  is, 
therefore,  a  correct  statement  of 
the  general  rule  to  say  that  the 
defendant  can  avail  himself  under 
an  answer  at  the  hearing  of  every 
ground  of  defence  which  he  might 
use  by  way  of  demurrer  or  plea. 

The  privilege  of  availing  oneself 
in  the  answer  of  defences  that 
might  be  set  up  by  plea  or  demur- 
rer may  be  effectuated  either  by 
inserting  in  the  answer  a  formal 
plea  or  demurer  which  is  to  be  con- 
sidered first,  as  if  it  stood  alone. 
(See  Chapter  XI,  Sees.  235,  239, 
071/6,  pp.  412,  416;  Chapter  XII,  Sec. 
250,  ante,  p.  436),  or  by  incorporat- 
ing as  allegations  of  the  answer 
questions  which  might  have  been 
raised  by  plea  or  demurrer  and  ob- 
taining the  benefit  of  these  allega- 
tions with  the  other  allegations  of 
the  answer  at  the  final  hearing  on 
the  proofs. 

6.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
713;  Van  Schroder  v.  Brittan,  98 
Fed.  169  (C.  C.  1899);  Graham  v. 
Mason,  F.  C.  5671,  4  Cliff.  88,  5 
Fish.  P.  C.  1   (C.  C.  1869). 


7.  Vannatta  v.  Lindley,  98  111. 
App.  327  (1901),  aff.  198  111.  40,  92 
A.  S.  E.  270  (1902),  adequate  rem- 
edy at  law;  Black  v.  Miller,  173 
111.  489  (1898),  adequate  remedy 
at  law,  raised  successfully  in  an- 
swer after  demurrer  had  been  over- 
ruled; Harley  v.  Sanitary  District, 
54  111.  App.  337  (1894),  public 
policy  against  the  alleged  equity 
of  the  bill;  Campbell  v.  Campbell's 
Admr.,  8  N.  J.  E.  738,  741  (1851), 
semhle ;  Eice  v.  Euckle,  225  Pa. 
231  (1909),  lack  of  jurisdiction  of 
dispute  over  real  estate  title; 
Brown  v.  Kentner,  190  Pa.  182 
(1899),  lack  of  jurisdiction  where 
quo  u-arranio  will  lie. 

But  by  some  of  the  codes  the  fil- 
ing of  an  answer  waives  the  right 
to  object  to  the  jurisdiction.  Ten- 
nessee Code,  Sec.  6131;  Virginia 
Code,  Sec.  3260;  West  Virginia 
Code  1906,  Sec.  3836. 

8.  United  States  v.  Gillespie,  6 
Fed.  803  (C.  C.  1881),  lack  of  par- 
ties, under  former  Federal  Equity 
Eule   52. 

9.  Eeed  v.  Cumberland  Ins.  Co., 
36  N.  J.  E.  146,  152  (1882);  Water- 
man V.  Buck,  63  Vt.  544  (1891); 
Dan.   Ch.   Pr.    (6th   Am.   ed.),  715, 


ANSWERS 


451 


apparently  it  may  be  taken  by  answer  ^°  must  be  specially 
pointed  out,  and  disposed  of  before  the  hearing  on  the 
merits,  otherwise,  the  court  considering  the  mischief  as 
already  incurred,  will  not  except  perhaps  in  a  special 
case  ^^  allow  it  to  prevail  at  the  hearing.^^ 

Again  where  a  defendant  has  a  defence  which  would 
be  a  good  plea  in  bar,  such  as  res  adjudicata,^^  or  the 
statute  of  frauds,^^  or  limitations,^^  or  a  bona  fide  pur- 
chase for  value,^"  if  he  does  not  care  to  avoid  discovery. 


citing  Wray  v.  Hutchinson,  2  M. 
&  K.  235,  238;  Milligan  v.  Mitchell, 
1  M.  &  C.  433,  447. 

10.  Labadie  v.  Hewitt,  85  111.  341 
(1877);  Bell  v.  Woodward,  42  N. 
H.  181  (1860),  semblej  Annin  v, 
Annin,  24  N.  J.  E.  184  (1873), 
semble;  Veghte  v.  Earitan,  etc., 
Co.,  19  N.  J.  E.  142  (1868),  semble. 
Contra,  Chic.  Tel.  Co.  v.  111.  Mfg. 
Assn.,  106  111.  App.  54  (1903),  sem- 
ble; Wade  V.  Pulsifer,  54  Vt.  45 
(1881),  semble. 

11.  Barnes  v.  Am.  Brake  Beam 
Co.,  238  111.  582  (1909),  semble; 
Labadie  v.  Hewitt,  85  111.  341 
(1877),  semble;  Payne  v.  Avery, 
21  Mich,  524,  538  (1870),  semble; 
Pierce  v.  Old  Dominion,  etc.,  Co., 
67  N.  J.  E.  399   (1904),  semble. 

12.  Barnes  v.  Am.  Brake  Beam 
Co.,  238  111.  582  (1909);  Crocker  v. 
Dillon,  133  Mass.  91  (1882);  Lyons 
V.  Clark,  137  Mich.  438  (1904); 
Annin  v.  Annin,  24  N.  J.  E.  184 
(1873);  Veghte  v.  Earitan  Co.,  19 
N.  J.  E.  142  (1868);  Wade  v.  Pul- 
sifer, 54  Vt.  45  (1881). 

In  Crocker  v.  Dillon,  133  Mass. 
91  (1882),  the  court  holds  that  the 
objection  also  of  adequate  remedy 
at  law  is  waived  by  answering  and 
going  to  a  hearing  on  the  merits. 

13.  Marvin  v.  Hampton,  18  Fla. 
131  (1881),  semble;  Withers  v. 
Denmead,  22  Md.  135    (1864),  an- 


other suit  pending;  Mound  City 
Co.  V.  Castleman,  171  Fed.  520  (C. 
C.  1906);  Bank  of  U.  S.  v.  Beverly, 
1  How.  134,  12  L.  ed.  75  (1843). 
The  case  last  cited  held  the  answer 
insufficient  for  failing  to  set  up  or 
exhibit  the  record  of  the  former 
suit. 

14.  Van  Duyne  v.  Vreeland,  12 
N.  J.  E.  143  (1858);  Vaupell  v. 
Woodward,  2  Sandf.  Ch.  (N.  Y.) 
143  (1844);  Coles  v.  Bowne,  10 
Paige  (N.  Y.)   526  (1844). 

15.  Pierce  v.  McClellan,  93  111. 
245  (1879);  Harris  v.  Cornell,  80 
111.  54  (1875),  laches;  Snow  v.  Bos- 
ton, etc.,  Co.,  153  Mass.  456  (1891), 
laches;  Highstone  v.  Franks,  93 
Mich.  52  (1892);  Boone  v.  Chiles, 
10  Pet.  177,  9  L.  ed.  388  (1836); 
Phelps  V.  Elliott,  35  Fed.  455  (C.  C. 
1888). 

16.  Fox  V.  Coon,  64  Miss.  465 
(1886),  semble;  Servis  v.  Beatty, 
32  Miss.  52  (1856);  High  v.  Batte, 
18  Tenn.  335  (1837),  semble;  Eorer 
Iron  Co.  V.  Trout,  83  Va.  397 
(1887). 

Maryland  Code,  Art.  16,  Sec. 
155,  and  Equity  Eules  23  of  Mary- 
land, 57  of  Florida,  37  of  Penn- 
sylvania, and  22  of  Ehode  Island 
expressly  mention  this  defence  as 
proper  by  answer,  equivalent  to  a 
plea. 


452 


EQUITY  PRACTICE 


and  does  not  wish  to  attempt  the  precision  and  certainty 
required  in  framing  a  plea/^  or  has  additional  circum- 
stances in  support  of  his  case  which  he  could  not  offer 
in  a  plea,  he  may  set  it  all  out  in  his  answer,  both  the 
matter  in  bar  and  the  additional  facts,  and  have  the  same 
benefit  from  it  at  the  hearing-  as  if  he  had  relied  on  a  plea 
alone.*^ 

Although  the  above  defences  are  all  available  in  an 
answer,  nevertheless  the  distinctive  feature  of  an  answer 
is  the  opportunity  which  it  offers  to  deny  the  charges  of 
the  plaintiff,  which  of  course  cannot  be  done  by  demurrer, 
and  to  set  forth  any  and  all  circumstances  which  tend  to 
support  the  defendant's  case,  which  of  course  cannot  be 
done  in  a  plea.  A  defendant  may  even  set  up  in  his 
answer  matter  which  has  occurred  since  the  filing  of  the 
bill,^'^  but  defences  previously  oveiTuled  in  demurrer  or 
plea  cannot  afterwards  be  inserted  in  an  answer.-" 


17.  Marvin  v.  Hampton,  18  Fla. 
131  (1881),  semble;  Jenkins  v 
Greenbaum,  95  111.  11  (1880);  Ser 
vis  V.  Beatty,  32  Miss.  52  (1856): 
McCabe  v.  Cooney,  2  Sandf.  Ch 
(N.Y.)   314  (1845). 

But  in  High  v.  Batte,  18  Tenn. 
335  (1837),  it  was  held  that  the 
defence  of  bonn  fide  purchaser  for 
value  must  be  set  out  in  an  an- 
swer with  all  the  certainty  of  a 
plea. 

18.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  714;  Pierce  v.  McClellan,  93  111. 
245   (1879). 

19.  Rucker  v.  Jackson,  60  So. 
139  (Ala.  1912);  Hall  v.  Home, 
etc.,  Co.,  56  N.  J.  E.  304  (1897), 
tender  after  bill  filed;  Barnegat 
City,  etc.,  Assn.,  v.  Buzby,  20  Atl. 
214  (N.  J.  Ch.  1890),  title  ac- 
quired; Raelble  v.  Goebbel,  6  Atl. 
21  (N.  J.  Ch.  1886),  payment;  Lyon 
v.  Brooks,  2  Edw.  Ch.   (N.  Y.)   110 


(1833),  payment;  Furman  v.  North, 
63  Tenn.  296   (1874),  release. 

20.  Maine  Equity  Rule  23;  Pent- 
large  V.  Pentlarge,  22  Fed.  412 
(C.  C.   1884). 

But  in  Illinois  the  defence  of 
adequate  remedy  at  law,  though 
overruled  on  demurrer,  may  be 
raised  again  in  the  answer.  Black 
V.  Miller,  173  111.  489  (1898),  re- 
versing 71  111.  App.  342.  A  plea 
of  res  judicata  may  be  overruled 
where  it  does  not  clearly  appear 
that  the  same  matter  has  been 
previously  litigated,  and  yet  the 
defendant  may  be  permitted  to 
raise  the  same  defence  in  his  an- 
swer. Matthews  v.  Roberts,  2  N. 
J.  E.  338  (1840).  And  of  course 
the  overruling  of  a  demurrer  on  a 
certain  ground  does  not  prevent  the 
defendant  from  relying  in  his  an- 
swer on  facts  establishing  that 
ground.     Snow  v.  Boston,  etc.,  Co., 


ANSWERS  .  453 

§  262.  — Consistency.  Although  a  defendant  may  by  his 
answer  set  up  any  number  of  defences  which  are  the  con- 
sequence of  the  same  state  of  facts,  he  cannot  insist  upon 
two  defences  which  are  inconsistent  with  each  other,  or 
are  the  consequence  of  inconsistent  facts.- ^  If  he  does, 
the  result  will  be  to  deprive  him  of  the  benefit  of  either, 
and  entitle  the  j^laintiff  to  a  decree.--  And  it  makes  no 
difference  whether  such  inconsistent  defences  are  stated 
separately  or  in  the  alternative.-"^  But  where  an  answer 
objectionable  in  this  respect  is  not  excepted  to,  and  on 
the  hearing  one  of  the  defences  pleaded  is  found  to  be 
untrue  and  the  other  is  established  by  proofs,  a  decree 
will  not  be  reversed  on  account  of  the  interposition  of 
such  untrue  and  inconsistent  defences. ^^ 

§  263.  — No  affirmative  relief.  An  answer  is  purely  a 
defensive  jDleading.  As  a  general  rule,  the  defendant  can 
only  pray  to  be  dismissed  and  cannot,  on  the  strength 
of  anything  set  forth  in  his  answer,  obtain  any  affirmative 
relief.    If  he  desires  such  relief,  he  must  seek  it  by  cross 

153  Mass.  456  (1891);  Fuller  v.  Saul,  1  Anst.  332,  341;  Jesus  Col- 
Knapp,  24  Fed.  100  (C.  C.  1885).  lege  v.   Gibbs,  1  Y.   &  C.  Ex.   145, 

21.  Farrand  v.  Long,  184  111.  100       157. 

(1900);  Child  v.  Emerson,  99  Mich.  23.  Jesus  College  v.  Gibbs,  1  Y. 
380  (1894);  Bannister  v.  Miller,  &  C.  Ex.  145,  160.  But  though  the 
54  N.  J.  E.  121  (1895);  Gilbert  v.  defendant  cannot,  by  his  answer, 
Galpin,  11  N.  J.  E.  445  (1857);  set  up  in  opposition  to  the  plain- 
Savings,  etc.,  Co.  V.  Bear  Valley,  tiff's  title,  two  inconsistent  de- 
etc,  Co.,  112  Fed.  693  (C.  C.  1902),  fences  in  the  alternative,  he  will 
cross  bill  inconsistent  with  answer;  not  be  precluded  from  denying  the 
Ozark  Land  Co.  v.  Leonard,  24  Fed.  plaintiff's  general  title,  and  also 
660  (C.  C.  1885).  Contra,  Federal  insisting  that  in  case  the  plaintiff 
Equity  Eule  30.  establishes  his  title  he  is  precluded 

22.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  from  recovering  by  some  other  cir- 
p.  713;  Ozark  Land  Co.  v.  Leonard,  cumstance  which  would  equally 
24  Fed.  660  (C.  C.  1885).  serve  to  preclude  him  or  any  other 
•  Sometimes,    however,    where   the  person  in  whom  the  title  might  be 

inconsistency       is       unintentional,  actually  vested.     Dan.  Ch.  Pr.  (6th 

arising  from  redundant  expression  Am.  ed.),  p.  714;   Carte  v.  Ball,  3 

or    other    verbal    inaccuracy,    the  Atk.  496,  499. 

court  will  reject  the  redundant  ex-  24.  Scanlan   v.   Scanlan,   134   111. 

pressions    as    surplusage    or    direct  630,    640    (1890"). 

them    to   be    struck    out.      Ellis    v. 


454 


EQUITY  PRACTICE 


bill.-^  The  general  rule  has  however  been  modified  in 
the  modem  practice  iu  many  jurisdictions,  as  we  have 
seen  in  the  discussion  elsewhere  of  cross  bills.^" 

§264.  — Sufficiency.  It  will  be  seen  from  the  state- 
ment above  as  to  the  general  nature  of  an  answer,  that 
the  sufficiency  of  an  answer  as  a  disclosure  of  evidence 
on  a  bill  seeking  discovery  and  relief  is  a  very  different 
matter  from  the  sufficiency  of  an  answer  as  a  defensive 
pleading  merely  to  a  pure  bill  for  relief.  Yet  practically 
all  the  rules  laid  down  in  the  text  books  as  to  the  suffi- 
ciency of  answers  relate  to  the  requirements  for  answers 
to  bills  seeking  discovery  either  directly  or  incidentally, 
and  are  therefore  no  longer  applicable  to  bills  seeking 
nothing  but  relief.  The  question  in  the  latter  case  is  sim- 
ply whether  the  answer  is  sufficient  as  a  pleading.-^ 


25.  See  Chapter  VI  ("Bills  Not 
Original"),  Sec.  141,  notes  87,  88, 
anie,  p.  272,  for  cases  afl&rming 
this  general  principle.  • 

26.  See  Chapter  VI  ("Bills  Not 
Original"),  Sec.  141,  notes  89,  90, 
ante,  p.  273,  for  discussion  of  the 
exceptions  to  the  general  principle. 

Under  Federal  Equity  Rule 
(1913)  No.  30,  a  counter  claim  to 
an  infringement  suit  maj'  be  set  up 
in  the  answer.  Salt's  Textile,  etc., 
Co.  V.  Tingue,  etc.,  Co.,  208  Fed.  156 
(1913).  A  counter  claim  in  such  a 
suit  may  ask  damages  for  false 
statements  regarding  the  defend- 
ant 's  business.  Vacuum,  etc.,  Co. 
V.  Am.  Rotary,  etc.,  Co.,  208  Fed. 
419  (1913).  But  the  counter  claim 
should  not  be  for  a  merely  legal  de- 
mand. Motion  Picture  Patents  Co. 
V.  Eclair  Film  Co.,  208  Fed.  416 
(1913),  here  it  sought  for  treble 
damages  under  the  Anti-Trust  Act. 

27.  The  courts  seem  to  have  been 
very  slow  to  recognize  this  fact, 
but  in  the  case   of  Field  v.   Hast- 


ings, etc.,  Co.,  65  Fed.  279  (C.  C. 
1895),  it  was  clearly  recognized  and 
applied.  In  that  case,  which  was 
on  exceptions  to  the  answer  for 
insufficiency,   the   court  said: 

"In  support  of  the  exceptions 
are  cited  the  rules  laid  down  in 
regard  to  answers  filed  to  bills  for 
discovery.  When  it  was  necessary 
to  resort  to  equity  in  order  to  ob- 
tain the  testimony  of  a  party  in- 
terested in  a  matter  iu  suit,  courts 
in  order  to  compass  the  purpose 
sought  enforced  the  rule  that  a 
party  must  answer  fully  the  state- 
ments of  fact  contained  in  the  bill, 
and  must  make  complete  discovery 
of  all  facts  within  his  knowledge 
pertinent  to  the  matters  in  issue. 
A  party  thus  called  upon  to  an- 
swer was  in  fact  called  upon  to 
give  testimony  and  an  answer 
which  might  be  entirely  sufficient 
as  a  pleading  might  be  held  in- 
sufficient when  viewed  in  the  light 
of  being  a  response  to  the  inter- 
rogatories   in    the    bill    contained. 


ANSWERS 


455 


Since  bills  for  discovery  in  any  form  are  now  becoming 
obsolete,  and  the  pure  bill  for  relief  is  the  bill  usually 
brought,  no  space  will  be  devoted  in  the  text  to  the  rules 
governing  the  sufficiency  of  answers  to  bills  requiring 
discovery,  but  these  principles  will  be  given  in  the  foot- 
notes 2^  and  the  text  devoted  to  a  statement  of  the  require- 
ments of  an  answer  as  regards  merely  its  sufficiency  as  a 
pleading. 


The  answers  in  the  ease  now  before 
the  court  are  not  to  be  viewed  in 
the  latter  light.  As  parties  in  in- 
terest are  now  made  competent  to 
give  testimony  as  witnesses,  all 
need  for  a  resort  to  a  bill  for  dis- 
covery is  done  away  with  except 
possibly  under  peculiar,  and  there- 
fore exceptional,  circumstances. 

"The  bill  in  the  case  now  before 
the  court  is  not  merely  for  discov- 
ery, but  is  for  substantial  relief, 
and  therefore  is  maintainable  in 
equity;  but  it  is  also  true  that  in 
determining  the  sufficiency  of  the 
answers  the  rules  applied  to  an- 
swers in  cases  wherein  discovery 
was  sought  under  the  practice  for- 
merly in  force,  but  now  practically 
obsolete,  are  not  now  the  proper 
guides  for  determining  the  suffi- 
ciency of  an  answer.  As  already 
stated,  the  bill  expressly  states  that 
the  defendants  are  not  required  to 
answer  under  oath,  and  therefore 
under  the  provisions  of  Equity  Eule 
41,  unless  the  case  is  set  down  for 
hearing  on  bill  and  answer,  the 
answer  cannot  be  held  as  evidence 
for  the  defendants;  and,  further- 
more, as  the  bill  does  not  contain 
any  special  interrogatories,  it  is 
entirely  clear  that  the  complain- 
ant's bill  must  be  treated  as  one 
for  relief  only,  and  the  sufficiency 
of  the  answers  is  to  be  determined 
as  a  matter  of  pleading." 


28.  The  following  are  the  estab- 
lished rules  laid  down  in  text- 
books and  decisions  governing  the 
sufficiency  of  answers  to  bills  for 
discovery  or  for  relief  with  inci- 
dental discovery  by  interrogatories 
and  answer  under  oath:    . 

1.  Defendant  must  answer  fully. 
It  may  be  stated  as  a  fundamental 
general  rule  that  if  a  defendant 
submits  to  answer,  his  answer  must 
be  full  and  perfect  to  all  the  ma- 
terial allegations  of  the  bill. 
Story's  Eq.  PI.  (10th  ed.).  Sec.  852. 
Although  there  are  no  special  in- 
terrogatories but  merely  a  general 
interrogatory  at  the  end  of  the  bill. 
Methodist  Episcopal  Church  v. 
Jaques,  1  Johns.  Ch.  (N.  Y.)  65,  75, 
76  (1814);  and  see  Equity  Eules 
4  and  20  of  Vermont. 

Thus,  in  an  answer  by  a  partner 
to  a  bill  seeking  an  account,  a  ref- 
erence to  the  books  of  the  concern 
generally  and  to  former  accounts 
is  not  sufficient,  he  must  give  a 
clear,  full  statement  of  the  results 
of  the  business,  referring  to  par- 
ticular books  and  pages.  Gordon  's 
Adm'x  v.  Hammell,  19  N.  J.  E.  216 
(1868).  So  in  an  allegation  that 
it  was  "understood"  that  a  cer- 
tain account  should  be  set  off  with- 
out alleging  that  it  was  so  agreed, 
nor  by  whom  it  was  so  understood, 
was  held  insufficient.  Lewis  v. 
Cranmer,   36   N.  J.  E.   124    (1882). 


456 


EQUITY  PRACTICE 


§  265.  Sufficiency  of  an  answer  as  a  pleading.  The  pri- 
mary purpose  of  an  answer  as  a  defensive  pleading  to  a 
pure  bill  for  relief  is  to  notify  the  plaintiff  of  the  grounds 


Likewise  an  allegation  that  part 
of  land  intended  to  be  conveyed 
has  been  omitted  from  the  descrip- 
tion without  stating  what  part,  is 
insufficient.  Allen's  Ex.  v.  Rolf, 
25  N.  J.  E.  163  (1874).  To  so  much 
of  the  bill  as  it  is  necessary  and 
material  for  the  defendant  to  an- 
swer, he  must  speak  directly  and 
without  evasions  and  he  must  not 
merely  answer  the  several  charges 
literally  repeating  verbatim  the 
words  of  the  bill,  but  the  substance 
of  the  charge  should  be  met  and 
covered  positively  and  fully. 

2.  Denials  must  be  specific.  A 
general  denial  of  all  matters  con- 
tained in  the  bill,  or  even  of  all 
the  matters  of  a  given  paragraph 
is  not  sufficient.  Denials  must  be 
specific  and  in  detail  to  each  allega- 
tion. If  the  charge  in  the  bill 
embraces  several  particulars,  the 
answer  should  be  in  the  disjunc- 
tive; denying  each  particular  or  ad- 
mitting some  and  denying  others 
according  to  the  fact.  Davis  v. 
Mapes,  2  Paige  (N.  Y.)  105  (1830); 
King  V.  Ray,  11  Paige  (N.  Y.)  236 
(1844).  Again,  when  the  defend- 
ant denies  a  particular  allegation, 
he  should  not  do  so  by  way  of 
negative  pregnant;  that  is  to  say, 
when  he  is  charged  with  having 
received  the  sum  of  $1,000,  he 
should  not  simply  deny  the  allega- 
tion, but  should  state  that  he  had 
never  received  that  sum  or  any 
part  thereof,  or  else  set  forth  what 
part  he  has  received.  Story's  Eq. 
PI.   (10th  ed.).  Sec.  855. 

3.  Exceptions  to  rule  requiring 
full  answer  are,  however,  well  rec- 


ognized. Thus  a  defendant  need 
answer  only  those  matters  in  a  bill 
which  are  well  pleaded.  He  need 
not  answer  mere  matters  of  argu- 
ment or  conclusions  of  law,  nor  is 
he  bound  to  answer  to  matters 
which  are  immaterial  or  irrelevant, 
or  impertinent  or  scandalous 
(Story's  Eq.  PI.  (10th  ed.).  Sec. 
846),  nor  to  anything  which  may 
subject  him  to  any  penalty,  for- 
feiture or  punishment,  nor  to  any- 
thing which  would  involve  a  breach 
of  professional  confidence;  nor  is 
he  bound  to  disclose  facts  respect- 
ing his  own  title,  but  only  those 
which  concern  the  title  of  the  plain- 
tiff. Story's  Eq.  PI.  (10th  ed.),^ 
Sec.  846.  He  may,  however,  if  he 
chooses,  answer  immaterial  allega 
tions.  Hogencamp  v.  Ackerman, 
10  N.  J.  E.  267  (1854);  although 
the  fact  that  he  answers  some  mat- 
ters of  recital  does  not  obligate 
him  to  answer  all.  Newhall  v. 
Hobbs,  3  Cush.  (Mass.)  274  (1849). 
In  all  the  cases  where  an  exception 
to  the  rule  requiring  full  answer 
applies,  the  defendant  is  permitted 
to  insist  in  the  answer  itself  on 
his  exemption  from  any  obligation 
to  answer  such  objectionable  mat- 
ter. The  plaintiff  may  then  except 
to  the  answer  as  insufficient,  and 
the  question  of  exemption  is  thus 
brought  before  the  court  for  deter- 
mination. Story's  Eq.  PI.  (10th 
ed.),  Sec.  846. 

It  seems  that  in  a  bill  seeking 
an  account,  where  a  defendant  de- 
nies by  his  answer  facts  upon 
which  the  plaintiff's  right  to  an  ac- 
count  is  based,  he  may  refuse  to 


ANSWERS 


457 


of  defence  which  the  defendant  intends  to  set  up  to  each 
allegation,  and  thus  create  an  issue  on  which  the  parties 
can  go  to  hearing.    The  chief  requisite  therefore  of  such 


render  the  account.  Langdell's 
Eq.  PI.,  Sees.  70-73;  Armstrong  v. 
Crocker,  10  Gray  (Mass.)  269 
(1858).  But  there  is  a  conflict  of 
opinion  on  this  point.  See  review 
of  the  authorities  by  Chancellor 
Kent  in  Phillips  v.  Prevost,  4 
Johns.  Ch.  (N.  Y.)  205  (1819),  and 
authorities  collected  in  Beach's 
Mod.  Eq.  Pr.,  Sec.  336. 

Another  obvious  exception  to  the 
rule  requiring  a  full  answer  is  that 
where  there  are  several  defendants, 
a  defendant  is  in  fact  only  obliged 
to  answer  to  so  much  of  the  plain- 
tiff's bill  as  is  necessary  to  enable 
the  plaintiff  to  obtain  a  complete 
decree  against  him  individually. 
Defendants  in  equity  are  frequent- 
ly formal  parties,  and  although  in 
practice  it  is  very  common  for  each 
party  to  answer  every  part  of  the 
bill,  it  is  often  unnecessary. 
Stsry's  Eq.  PI.  (10th  ed.).  Sec. 
853c. 

A  defendant  is  not  bound  to  an- 
swer an  interrogatory  unless  it  is 
founded  on  some  distinct  allega- 
tion of  the  bill  or  is  at  least  within 
the  general  scope  of  inquiry  cov- 
ered by  the  allegations  of  the  bill. 
Grimm  v.  Wheeler,  3  Edw.  Ch. 
(N.  Y.)  334  (1840);  Fuller  v. 
Knapp,  24  Fed.  100  (C.  C.  1885). 

4.  Denials  must  be  as  to  knowl- 
edge, Information  and  belief.  If 
general  if  a  fact  is  charged,  which 
is  within  the  defendant's  own 
knowledge,  or  if  it  is  done  by  him- 
self, he  must  answer  positively  and 
not  to  his  remembrance  or  belief. 
Story's  Eq.  PI.,  Sec.  854;  Utica 
Ins.  Co.  v.  Lynch,  3  Paige  (N.  Y.) 


210  (1832).  But  the  rule  is  not 
always  strictly  enforced  where,  for 
example,  the  defendant  cannot  rea- 
sonably be  presumed,  under  the  cir- 
cumstances, to  recollect  positively. 
Hall  V.  Wood,  1  Paige  (N.  Y.)  404 
(1829).  In  Hall  v.  Bodily,  1  Vern. 
470,  the  defendant  having  sworn 
in  his  answer  that  he  had  received 
no  more  than  a  certain  sum,  to  his 
remembrance,  it  was  held  insuffi- 
cient. But  if  he  is  entirely  ig- 
norant as  to  the  fact,  he  should  al- 
lege that  he  has  "no  knowledge, 
remembrance,  information  or  be- 
lief." Dan.  Ch.  Pr.  (6th  Am.  ed.), 
pp.  722,  723.  It  is  held  that  a  de- 
nial of  knowledge  merely  is  not 
sufficient,  he  must  also  deny  in- 
formation. Dinsmoor  v.  Hazelton, 
22  N.  H.  535  (1851);  Salem  v. 
Board  of  Health,  74  Atl.  696  (N.  J. 
E.  1909) ;  Eeed  v.  Cumberland  Ins. 
Co.,  36  N.  J.  E.  146  (1882);  Smith 
V.  Lasher,  5  Johns.  Ch.  (X.  Y.)  247 
(1821).  But  with  respect  to  trans- 
actions not  his  own,  he  need  not 
seek  for  information  in  order  to 
give  it  to  the  plaintiff,  though  he 
must  state  his  belief  as  well  as  his 
information.  Thompson  v.  North, 
67  N.  J.  E.  278  (1904).  But  an 
allegation  of  utter  and  entire  ig- 
norance as  to  the  fact  is  held  suffi- 
cient. Morris  v.  Parker,  3  ,lohns. 
Ch.  (N.  Y.)  297  (1818).  If  he  de- 
nies knowledge  and  information, 
he  need  not  deny  belief  (Morris  v. 
Parker,  3  Johns.  Ch.  (Ts'.  Y.)  297 
(1818)),  but  if  he  has  information 
other  than  that  derived  from  the 
bill,  he  must  state  what  his  in- 
formation  is    and   whether    or   not 


458  EQUITY  PKACTICE 

an  answer  is,  that  it  should  meet  in  some  form  either  by 
admission,  denial,  or  confession  and  avoidance,  every 
material  allegation  of  the  bill.-'-'  It  is  not  always  neces- 
sary however  that  the  answer  should  admit  or  deny  each 
individual  fact  alleged,  separately  and  in  detail.^*^  It 
is  sufficient  for  the  answer  to  admit  or  deny  generally 
all  the  allegations  contained  in  any  one  paragraph  of  the 
bill,  provided  the  contents  of  the  paragraph  are  such 
that  they  can  be  sufficiently  met  by  a  general  admission 
or  denial  without  qualification  or  without  alleging  new 
matter  in  avoidance.  Otherwise  the  defendants  must 
answer  more  particularly.  But  a  general  denial  of  all  the 
matters  contained  in  the  bill  is  not  sufficient,  nor  is  it 
well  to  admit  or  deny  several  paragraphs  of  the  bill  com- 
bined.^^  Thus  the  answer  should  not  say  that  "The 
defendant  admits  all  the  allegations  contained  in  para- 
graphs 1,  2,  5  and  8  of  the  plaintiff's  bill  and  denies  all 
the  allegations  in  paragraphs  3,  4,  6  and  7,  and  as  to  the 
matters  charged  in  paragraphs  9  and  10  the  defendant 

he  believes  such  information.    Utica  109    Ala.    335    (1895) ;    Savage    v. 

Ins.  Co.  V.  Lynch,  3  Paige  (N.  Y.)  Benham.  17  Ala.  119  (1849). 

210    (1832).     So   if   a  bill  state  a  niinois.     J.  &  A.  ![903;   Hurd's 

fact    which   is   not    denied   by   the  Stat.,  Ch.  22,  Sec.  23. 

answer,  and  by  the  answer  it  ap-  Mainfe.     Eq.  Eule  10. 

pears  that  the  defendant   has  the  Maryland.      Code,    Art.    16,   Sec. 

means  of  answering  as  to   his  be-  loo:   Eq.   Rule   23. 

lief,  by  making  inquiry  as  to  that  Massachusetts.     Eq.  Eule  7. 

fact,  he  must  answer  as  to  the  re-  Michigan.     Eq.  Eule  10. 

suit  of  that  inquiry  and  his  stating  Mississippi.     Code,  Sec.  584. 

that  he  is  unable  to  set  forth,  etc.,  Pennsylvania.     Eq.  Eule  37. 

is  not  suflaeient.     Eeed  v.  Cross,  14  Vermont.     Eq.  Eule  20. 

Me.   262    (1837).  30.  Moyer       v.       Livingood,       2 

It  has  been  held  that  when  Woodw.  Dec.  317  (Pa.  1870). 
answer  under  oath  is  waived,  to  a  As  to  whether  allegations  not  de- 
bill  which  seeks  both  relief  and  nied  by  the  answer  are  admitted 
discovery,  the  discovery  must  still  to  be  true,  see  Chapter  XIX  ("Evi- 
be  given.  Manley  v.  Mickle,  55  X.  dence"),  Sec.  336,  post,  p.  558. 
.T.  E.  563  (1897^).  But  see  contra,  31.  Eogers  v.  Verlander,  30  "W. 
the  statutory  provisions  in  Ehode  Va.  619  (1888').  See  also  Moog  v. 
Island  and  Massachusetts.  Barrow.  101  Ala.  209   (1892);  Smi- 

29.  Alabama.     Henrv  v.  Watson,  lie  v.  Siler,  35  Ala.  88  0859'). 


ANSWERS 


459 


says, ' '  etc. ;  such  a  practice  is  apt  to  be  confusing.  The 
answer  should,  as  a  rule,  take  up  the  paragraphs  of  the 
bill  one  at  a  time  and  in  their  regular  order.^^ 

If  the  defendant  has  no  knowledge  as  to  the  truth  of 
any  allegation,  his  proper  course  is  formally  to  deny  it, 
stating  that  this  denial  is  based  upon  information  and 
belief.  Such  a  denial  is  effective  to  put  plaintiff  upon 
his  proof.^^ 

§  266.  — Exceptions  to  general  rule.  There  are  several 
well  recognized  exceptions  to  the  rule  that  a  defendant 
must  answer  fully  to  a  bill  seeking  discovery  in  any  form, 
and  these  exceptions  also  apply  to  answers  to  bills  for 
pure  relief.  Thus  a  defendant  need  answer  only  those 
matters  in  a  bill  which  are  well  pleaded.  He  need  not 
answer  mere  matter  of  argument  or  conclusions  of  law  or 
fact ;  ^^  nor  is  he  bound  to  answer  to  matters  which  are 


32.  See  forms  of  answers  in  the 
third  volume. 

33.  In  Carpenter  v.  Edwards,  64 
Miss.  595  (1887),  under  a  code  pro- 
vision that  allegations  not  denied 
otherwise  than  by  a  general  trav- 
erse are  held  to  be  admitted,  a  de- 
nial on  information  and  belief  was 
held  a  sufficient  traverse  to  put 
the  plaintiff  to  his  proof.  But  a 
denial  merely  of  knowledge  with- 
out stating  information  and  belief, 
and  without  expressly  denying  the 
fact  alleged,  is  not  sufficient  to  put 
the  plaintiff  to  his  proof.  Hopper  v. 
Overstreet,  79  Miss.  241  (1901); 
McAllister  v.  Clopton,  51  Miss.  257 
(1875);  but  see  Eonald  v.  Bank  of 
Princeton,  90  Va.  813  (1894). 

In  the  absence  of  a  provision  in 
statutes  or  rules  that  allegations 
of  the  bill  are  to  be  taken  as  true 
unless  denied,  a  denial  on  informa- 
tion and  belief  was  held  sufficient 
to  put  the  plaintiff  to  his  proof  in 
Earle  v.  Art  Library  Pub.  Co.,  95 


Fed.  544  (C.  C.  1899),  and  Robinson 
V.  Mandell,  3  Cliff.  169,  F.  C.  11,959 
(C.  C.  1868);  but  in  the  case  first 
mentioned  it  was  held  that  the  de- 
nial was  not  sufficient,  though 
sworn  to,  to  require  the  evidence 
of  two  witnesses  or  one  witness 
plus  corroborating  circumstances  in 
order  to  overcome  it.  In  Comm., 
etc.,  Co.  v.  Cummings,  83  Fed.  767 
(C.  C.  1897),  exceptions  were  sus- 
tained because  the  defendant 
neither  admitted  nor  denied  ex- 
pressly and  did  not  at  least  state 
his  information  or  belief  in  the 
premises. 

In  no  case,  of  course,  are  the 
plaintiff's  allegations  merely  of  his 
information  and  belief  of  certain 
facts,  taken  as  allegations  of  the 
truth  of  those  facts.  Bailey  v. 
Worster,  103  Me.  170  (1907). 

34.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  846;  Merrill  v.  Plainfield,  45 
N.  H.  126  (1863),  inferences  of 
facts;  Thompson  v.  North,  67  N.  J. 


460 


EQUITY  PRACTICE 


immaterial  or  irrelevant,  impertinent  or  scandalous;  ^^ 
nor  to  anything  wliicli  may  subject  him  to  any  penalty, 
forfeiture  or  punishment;"^  nor  to  anything  which  would 
involve  a  breach  of  professional  coutidence.-''  In  all  these 
cases,  the  defendant  is  pennitted  to  insist  in  the  answer 
itself  upon  his  exemption  from  any  obligation  to  answer 
such  objectionable  matter.  The  plaintitf  may  then  except 
to  the  answer  as  insufficient  and  the  question  of  exemp- 
tion is  thus  brought  before  the  court  for  determination.^^ 
§  267.  Form  of  answers.  The  fomis  for  answers  in 
the  practice  of  the  various  jurisdictions  are  given  in  the 
third   volume.^^      If   two    or   more    defendants   join   in 


E.  278  (1904),  allegations  in  regard 
to  the  proper  construction  of  a 
will. 

35.  Wiswall  v.  Wandell,  3  Barb. 
Ch.  (X.  Y.)  312  (1S4S) ;  Utica  Ins. 
Co.  V.  Lynch,  3  Paige  (X.  Y.)  210 
(1832);  Burkheimer  v.  National, 
etc.,  Assn.,  59  W.  Va.  209,  4  L.  E. 
A.  (X.  S.)  1047  (1906);  Peters  v. 
Tonopah  Mining  Co.,  120  Fed.  5S7 
(C.  C.  1903);  Comm.,  etc.,  Co.  v. 
Cummings,  S3  Fed.  767  (C.  C. 
1S97). 

36.  Adams  v.  Porter,  1  Cush. 
(Mass.)  170  (1S48);  Fairchild  v. 
Fairchild,  43  X.  J.  E.  473  (1SS7), 
semble;  Bank  v.  Biddle,  2  Pars.  Eq. 
Cas.  31  (Pa.  1S44).  semble;  Boyd 
V.  U.  S.,  116  U.  S.  616,  29  L.  ed. 
746  (1886);  Federal,  etc.,  Co.  v. 
Int.,  etc.,  Co.,  119  Fed.  385  (C.  C. 
1902),  trade  secrets. 

In  Dwinal  v.  Smith,  25  Me.  379 
(1845),  it  was  held  that  the  de- 
fendant could  not  refuse  to  answer 
fully  to  facts  stated  in  the  bill  on 
the  ground  that  it  would  render 
him  liable  to  a  criminal  prosecu- 
tion, if  the  period  fixed  by  law 
within  which  he  could  be  prosecut- 
ed had  elapsed  before  the  answer 


was  filed,  even  though  it  h^d  not 
elapsed  at  the  time  of  tiling  the 
bill. 

In  Winsor  v.  Bailey,  55  X'.  H.  218 
(1S75),  it  was  held  that  the  de- 
fendants must  answer,  since  oath 
to  their  answer  had  been  waived, 
and  an  unsworn  answer  would  be 
a  mere  pleading,  sufficient  to  put 
the  plaintiff  on  his  proof  without 
making  incriminating  admissions. 

37.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  846;  Stratford  v.  Ilogan,  2 
Ball  &  B.  (Ir.  Ch.)  164;  Jones  v. 
Pugh,  12  Sim.  470. 

38.  Story's  Eq.  PI.  (10th  ed.). 
Sec.  S46;  Hunt  v.  Gookin,  6  Vt.  462 
(1S34). 

39.  In  some  of  the  jurisdictions 
the  form  for  answers  is  prescribed 
in  the  statutes  or  rules.  Delaware, 
Eq.  Bule  26;  Maryland,  Eq.  Bule 
13;  Code,  Art.  16,  Sec.  144;  Xew 
Hampshire,  Eq.  Bules  82,  83;  Ten- 
nessee, Code,  Sec.  6125:  Vermont, 
Eq.  43;  United  States,  Eq.  Eule  30. 

Formal  clauses  in  answers  are 
omitted  in  the  practice  of  most  ju- 
risdictions. Delaware.  Eq.  Rule  26; 
Maine.  Eq.  Rule  9;  Massachusetts, 
R.  L.,  Ch.  159,  Sec.  13;  Xew  Ilamp- 


ANSWERS 


461 


the  same  answer,^*^  it  is  headed  ''the  joint  and  several 
answer  of,"  etc.  An  answer  by  guardian  is  entitled  ''the 
answer  of  B.  by  C.  his  guardian."  If  the  answer  is 
joined  with  other  pleadings,  it  should  be  entitled  "the 
demurrer,  plea  and  answer  of,"  etc.  After  the  title  or 
address,  follows  the  substance  of  the  answer,  which 
should  be  divided  into  paragraphs  numbered  seri- 
atim.^^  In  drafting  an  answer,  the  same  "general  rules 
apply  as  to  framing  allegations,  setting  out  written 
instruments  and  the  like  as  stated  above  in  drawing  a 
bill.  An  answer  when  it  denies,  must  deny  specifically 
and  directly,  and  when  it  sets  forth  new  matter,  it  must 
state  specific  facts  and  not  merely  matter  of  argument 
or  conclusions  of  fact  or  law.  The  allegations  in  an 
answer   must    be   certain^-    and    concise   and   yet   full. 


shire,  Eq.  Eule  82;  New  Jersey,  Eq. 
Eule  208;  Vermont,  Eq.  Rule  21; 
Virginia,  Code,  Sec.  3266;  United 
States,  Eq.  Rule  30. 

It  is  recommended  that  the  prac- 
tice of  beginning  each  paragraph 
with  the  word  "that"  be  avoided, 
as  tending  to  mar  the  continuity  of 
thought,  and  that  the  simple  narra- 
tive form  be  used,  thus,  "First: 
The  defendant  admits,"  etc. 

A  cross  bill  is  not  an  answer. 
Morrow  v.  Morrow,  2  Tenn.  Ch.  549 
(1875).  But  compare,  contra,  Hoge 
V.  Eaton,  135  Fed.  411,  reversed  on 
other  grounds,  141  Fed.  64,  72  C. 
C.   A.   74    (1905). 

40.  The  answer  of  several  de- 
fendants may  be  joint,  but  it  is 
much  more  usual  to  find  it  joint 
and  several.  Vanderveer  v.  Hol- 
comb,  22  N.  J.  E.  555  (1871); 
Bailey  Washing  Machine  Co.  v. 
Young,  F.  C.  751,  1  B.  &  A.  362,  12 
Blatchf.  199  (C.  C.  1874) ;  Davis  v. 
Davidson,  F.  C.  3631,  4  McL.  136 
(C.  C.  1846). 

41.  Delaware.     Eq.  Rule  26. 


Maine.     Eq.  Rule  10. 

Maryland.  Code,  Art.  16,  Sec. 
155;   Eq.  Rule  23. 

Michigan.     Eq.  Rule  10. 

Pennsylvania.     Eq.  Rule  37. 

Rhode  Island.  G.  L.,  Ch.  289, 
Sec.  24. 

42.  Story's  Eq.  PI.  (10th  ed.), 
Sec.  852,  says  that  an  answer 
"should  be  certain  in  its  allega- 
tions, as  far  as  practicable."  The 
same  degree  of  accuracy  is  not  re- 
quired as  in  a  bill,  but  such  degree 
of  certainty  is  necessary  as  will 
clearly  inform  the  plaintiff  of  the 
nature  of  the  case  to  be  made 
against  him.  Jenkins  v.  Green- 
baum,  95  111.  11  (1880);  McKim  v. 
White  Hall  Co.,  2  Md.  Ch.  510 
(1849);  Fairchild  v.  Fairchild,  43 
N.  J.  E.  473  (1887);  King  v.  King, 
9  N.  J.  E.  44,  53  (1852);  Kelley  v. 
Ryder,  18  R.  I.  455  (1894);  Holton 
V.  Guinn,  65  Fed.  450  (C.  C.  1895). 

As  to  whether  an  answer  must 
have  the  same  precision  as  a  plea, 
see  note  17,  ante,  p.  452. 

A  mere  reference  to  another  an- 


462 


EQUITY  PRACTICE 


They  must  not  be  prolix,  impertinent  or  scandalous.  *^ 
The  answer  closes  with  a  prayer  that  the  defendant  be 

dismissed  with  his  costs,  and  as  shown  above  a  defend- 
ant can  as  a  general  principle  pray  for  no  other  relief, 
except  in  a  few  jurisdictions.^* 

§  268.  Signature.  All  answers  must  be  signed,  usually 
by  the  detVndaut  himself,  although  some  statutes  or  rules 
expressly  permit  signature  by  agent  or  attorney.*^  When 
signed  by  agent  or  attorney,  the  defendant 's  name  should 
be  signed  "by  A.  B.  his  agent"  or  "attorney"  as  the  case 
may  be. 

An  answer  should  always  be  signed  by  defendant's 
solicitor,  although  also  signed  by  defendant  himself,** 


swer  not  part  of  the  case  is  insuffi- 
cient to  inoorpvorate  it.  Wells  v. 
Stratton.  1  Tenn.  Ch.  323  (1873). 

43.  The  objections  of  impert- 
inence or  scandal  are  taken  by  ex- 
ceptions. See  the  discussion  of  the 
matter  in  Sec.  274,  below. 

44.  See  Sec.  263,  ante,  p.  453. 

In  Massachusetts  an  answer  need 
have  no  praver.  B.  L..  Ch.  159, 
Sec.  13. 

45.  It  is  a  rule  of  general  chanc- 
ery practice  that  the  answer  must 
be  signed  by  the  defendant  unless 
this  is  dispensed  with  by  order  of 
court.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  733.  A  signature  to  the  verifica- 
tion is  sufficient.  Ballard  v.  Ken- 
nedy, 34  Fla.  4S3  (1894).  It  is  said 
that  a  signature  to  an  unsworn  an- 
swer should  be  attested  by  solicitor 
or  other  person  competent  to  be  a 
witness.  Dan.  Ch.  Pr.  (6th  Am. 
ed.>,  p.  738. 

But  the  Maine  statute  requires 
a  signature  by  the  defendant  only 
where  sworn  answer  is  demanded, 
otherwise  a  signature  by  agent  or 
attorney  is  sufficient,  B.  S.,  Ch. 
79,  Sec.  17.     This  seems  to  be  the 


law  in  Tennessee.  Stadtter  t. 
Hertz,  13  Lea   (Tenn.".   315   (1SS4). 

The  statutes  or  rules  of  Massa- 
chusetts, Michigan,  and  Mississippi 
seem  to  permit  the  attorney  to  sign 
the  defendant 's  name  in  any  ease, 
Massachusetts.  B.  L.,  Ch.  159,  Sec. 
14;  Mississippi,  Code,  Sec.  576; 
Michigan,  Equity  Bule  10.  See 
Fulton  Co.  V.  Miss.,  etc.,  Co.,  21 
m.  338  (1859);  O'DonneU  v.  Cir- 
cuit Judge,  146  Mich.  442  (1906). 
But  in  Florida  even  where  sworn 
answer  has  been  waived,  an  answer 
signed  only  by  counsel  will  be 
stricken  from  the  files.  King  v. 
Bell,  54  Fla.  56S  (1907).  Eq.  Bule 
26  of  Delaware  requires  signature 
both  by  defendant  and  his  solici- 
tor. 

A  joint  and  several  answer 
signed  by  part  only  of  the  defend- 
ants will  be  treated  as  only  their 
answer.  Ballard  v.  Kennedy,  34 
Fla.   4S3   (1894^. 

46.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  732;  Delaware,  Equity  Bule  26; 
Maine.  Equity  Bule  18;  Davis  v. 
Davidson,  F.  C.  3631,  4  McL.  136 


ANSWERS 


463 


and  no  solicitor  should  sign  an  answer  until  lie  lias  exam- 
ined it  to  see  that  it  does  not  contain  any  prolix,  imper- 
tinent or  scandalous  matter."*^  When  an  answer  is  put 
in  by  a  guardian,  his  signature  is  sufficient  without  that 
of  his  ward.  ^^  A  guardian  should  sign  "A.  B.,  guardian 
of  C  D."  When  a  corporation  is  defendant  and  puts  in 
an  answer,  the  corporate  name  should  be  signed  thereto 
in  full  "by  A.  B.,  President"  or  other  authorized  officer, 
as  the  case  may  be,  and  the  corporate  seal  affixed.^^ 

The  want  of  a  proper  signature  may  be  taken  advan- 
tage of  by  motion  to  have  the  answer  taken  off  the  file ;  ^" 
but  such  defect  is  waived  by  filing  a  replication  ^^  and  it 
is  held  that  when  the  objection  is  raised,  the  court  may 
allow  the  answer  to  be  signed. ^^ 

§  269.  Oath.  In  general  chancery  practice,  unmodified 
by  statutes  or  rules,  all  answers  must  be  under  oath  unless 
the  oath  is  expressly  waived  by  the  plaintiff,'' "^  but  by  the 


(C.  C.  1846);  United  States,  Equity 
Rule  24. 

In  Michigan  and  New  Jersey,  it 
is  immaterial  whether  it  is  "solici- 
tor" or  "counsel"  who  thus  signs 
the  answers.  Henry  v.  Gregory,  29 
Mich.  68  (1874);  Dickerson  v. 
Hodges,  43  N.  J.  E.  45  (1887); 
Freehold,  etc.,  Assn.  v.  Brown,  28 
N.  J.  E.  42   (1877). 

47.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  733. 

48.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  733. 

49.  Ransom  v.  Stonington  Sav. 
Bank,  13  N.  J.  E.  212  (1880); 
Teeter  v.  West  Virginia,  etc.,  R. 
Co.,  35  W.  Va.  433   (1891). 

A  municipal  corporation  may 
sign  by  its  official  attorney.  Selig- 
man  v.  Santa  Rosa,  81  Fed.  524 
(C.  C.  1897). 

50.  King  V.  Bell,  54  Fla.  568 
(1907);  Ballard  v.  Kennedy,  34 
Fla.  483  (1894);  Bernier  v.  Bernier, 


72  Mich.  43  (1888).  Or  the  answer 
may  be  disregarded  and  pro  confesso 
entered.  Ocala  v.  Anderson,  58  Fla. 
415   (1909). 

51.  Bernier  v.  Bernier,  72  Mich. 
43  (1888);  Fulton  Bank  v.  Beach, 
2  Paige   (N.  Y.)   307   (1830). 

52.  Jackson  v.  Dutton,  46  Fla. 
513  (1903);  Bernier  v.  Bernier,  72 
Mich.  43  (1888),  semhle;  Holton  v. 
Guinn,  65  Fed.  450  (C.  C.  1895). 
The  refusal  to  allow  other  defend- 
ants to  sign  an  answer  which  has 
been  filed  which  states  a  good  de- 
fence, is  reversible  error.  Head  v. 
Lightfoot,  61  Fla.  608   (1911). 

53.  Alabama.  Paige  v.  Broad- 
foot,  100  Ala.  610  (1892);  McKen- 
zie  V.  Baldridge,  49  Ala.  564  (1873). 

Delaware.  Answers  are  to  be 
sworn  unless  interrogatories  have 
been  omitted;  but  on  motions  to 
dissolve  injunction  or  ve  exeat,  an- 
swers may  in  all  cases  be  sworn, 
Eq.  Rules  23,  26. 


464 


EQUITY  PRACTICE 


statutes  or  rules  of  some  of  the  states  the  answer  need  not 
be  swt)rn  to  unless  the  plaintiff  asks  for  answer  under 
oath."'^  In  the  latter  jurisdictions  it  is  consequently 
neither  necessary  nor  customary  to  insert  in  the  bill  an 
express  waiver  of  the  oath,  in  order  to  free  the  defend- 
ant from  the  necessity  of  answering  under  oath.  "Where 
the  plaintiff  has  absolved  the  defendant  from  giving  an 
oath,  either  by  an  express  waiver  or  by  failing  to  ask  for 
sworn  answer  in  the  jurisdictions  where  that  amounts  to 
an  express  waiver,  the  defendant  cannot  by  voluntarily 
answering  under  oath  obtain  the  benefits  of  his  answer 


Illinois.  J.  &  A.  •^901;  HurJ's 
Stat.,  Ch.  22,  See.  21. 

Michigan-  How.  Ann.  St.  (2d 
ed.).  See.  11960;  C.  L.,  Ch.  29,  Sec. 
31    (143  I. 

Mississippi.  Code,  See.  5S5.  For- 
merly a  sworn  answer  could  not  be 
waived.  Hodges  v.  Phillips,  50 
Miss.  362   (1S74». 

New  Jersey.  Comp.  St.,  "Chane- 
erv,"   Sec.    19. 

Rhode  Island.  G.  L.,  Ch.  2S9, 
Sec.  15. 

Tennessee.     Code.  Sec.  6127. 

Vermont.     Eq.  Rules  23.  24. 

Virginia.     Code,  Sec.  32S1. 

But  in  Massachusetts  an  answer 
except  to  a  bill  of  discovery  ' '  shall 
not  be  under  oath."  B.  L.,  Ch, 
159,  Sec.  13.  See  also  note  44,  ante, 
p.  462. 

An  oath  may  be  waived  as  to 
the  answer  but  required  as  to  in- 
terrogatories. See  Chapter  Yl 
("Original  Bills"),  note  4,  ante, 
p.  160;  New  Jersey,  Comp.  St., 
"Chancery,"  Sec.  19;  Virginia, 
Code,  Sec.  32S1. 

An  answer  need  not  be  accom- 
panied with  a  certificate  of  coun- 
sel as  to  good  faith  and  genuine- 
ness of  the  defence.  McGorray  v. 
O'Connor,  S7  Fed.  5S6,  31  C.  C.  A. 


114  (C.  C.  1S9S).  And  it  seems  that 
the  same  is  true  even  when  a  plea 
or  demurrer  is  inserted  in  the  an- 
swer. Helton  V.  Guinn,  65  Fed.  450 
(C.  C.  1S95). 

An  answer  may  be  waived  as  to 
some  only  of  the  defendants.  Tut- 
wiler  V.  Tuscaloosa,  etc.,  Co.,  89 
Ala.  391  (1889);  Gibson  v.  Trow- 
bridge, etc.,  Co.,  93  Ala.  579  (1890). 

54.  Maine,  E.  S.,  Ch.  79,  Sec.  17; 
Maryland,  Code,  Art.  16,  Sees.  146, 
159:  Eq.  Eules  15,  27;  Michigan, 
Eq.  Rule  10:  World,  etc.,  Co.  v. 
Adsit,  115  Mich.  652  (1898);  Xew 
Hampshire,  Eq.  Rule  85;  Aver  v. 
Messer,  59  X.  H.  279  (1879). 

By  the  Michigan  and  West  Vir- 
ginia practice,  if  an  oath  to  the 
answer  is  required,  the  bill  must 
be  verified.  Michigan,  Eq.  Rule 
10;  West  Virginia,  Code,  Sec.  4792. 
Where  an  answer  in  the  nature  of 
a  cross  bill  seeks  a  remedy  such 
a.=;  could  only  be  obtained  by  a 
sworn  bill,  the  answer  must  be 
sworn.  Bernier  v.  Bernier,  72 
Mich.  43  (1888).  But  only  one  de- 
fendant need  verify  an  answer 
where  only  one  plaintiff  has  veri- 
fied the  bill.  Arnold  v.  Slaughter, 
36  W.  Va.  589   (1892). 


ANSWERS 


465 


as  evidence,  as  would  be  the  case  if  an  answer  under  oath 
were  required. -^"^ 

Answer  by  guardian  of  an  infant  or  insane  person 
should  be  verified  by  the  guardian.  An  answer  by  a  cor- 
poration, when  under  oath,  should  be  sworn  to  by  some 
officer  of  the  corporation  having  personal  knowledge  of 
the  f acts.^"  Oaths  to  answers  should  be  upon  the  affiant 's 
own  knowledge,  information  and  belief;  and,  so  far  as 
upon  information  and  belief,  that  he  believes  the  informa- 
tion to  be  true.^^'^  The  oath  may  be  taken  before  the  usual 
magistrates  qualified  to  administer  oaths  within  the  juris- 
diction, but  where  the  answer  is  to  be  verified  in  another 
state  or  foreign  country,  a  notary  public  is  preferable,  or 
a  justice  of  the  peace  with  a  certificate  of  a  clerk  of  a 
court  of  record  as  to  his  qualification.''^^ 


55.  See  note  44  to  Sec.  282,  post, 
p.  494. 

56.  But  unless  an  officer  of  the 
corporation  is  made  a  party  in 
order  that  he  may  swear  to  an  an- 
swer, it  is  usually  held  that  a  cor- 
poration 's  answer,  even  where  an- 
swer under  oath  has  not  been  ex- 
pressly or  impliedly  waived,  need 
not  be  sworn  to,  but  need  only  be 
sealed  with  the  corporate  seal,  and 
will  not  be  given  the  effect  of  evi- 
dence. Fulton  Co.  V.  Miss.,  etc., 
E.  Co.,  21  111.  337  (1859);  Bouldin 
V.  Mayor,  15  Md.  18,  21  (1859); 
Van  Wyck  v.  Norvell,  2  Humph. 
(Tenn.)  193  (1840);  Teter  v.  West 
Va.,  etc.,  E.  Co.,  35  W.  Va.  433 
(1891);  Gamewell,  etc.,  Co.  v. 
Mayor,  31  Fed.  312  (C.  C.  1887). 
In  Carpenter  v.  Ins.  Co.,  4  How. 
185,  11  L.  ed.  931  (1846),  however, 
a  corporate  answer  sworn  to  by  an 
officer  of  the  corporation  who  was 
not  a  party,  but  who  had  knowl- 
edge of  the  facts,  was  allowed  and 
given  weight  as  evidence. 

The     Mississippi     code    provides 
Whitehouse  E.  P.  Vol.  1—30 


that  corporation  answers  need  not 
be  sealed,  but  should  be  sworn  to 
by  an  officer  unless  oath  is  waived. 
Code,  Sec.  585.  Illinois  code  pro- 
vides that  the  oath  to  a  corpora- 
tion's answer  may  be  made  by  an 
officer  or  agent  though  he  is  not  a 
party  defendant.  J.  &  A.  11902; 
Kurd's  Stat.,  Ch.  22,  Sec.  22. 

57.  When  a  person  in  his  answer 
under  oath  will  state  that  to  be  a 
fact  which  he  believes  to  be  true, 
when  he  has  at  hand  means  of  as- 
certaining whether  it  be  true  or 
not,  it  is  a  circumstance  strongly 
indicative  of  fraud  if  it  be  not 
true.  Gould  v.  Williamson,  21  Me. 
273   (1842). 

See  forms  of  oaths  in  the  forms 
of  answers  in  the  third  volume. 
See  also  Weems  v.  Roberts,  96 
Ala.  378  (1891);  Hogan  v.  Branch 
Bank,  10  Ala.  485  (1846);  Vermont, 
Eq.  Eules  23,  50;  West  Virginia, 
Code  1913,  Sec.  4796. 

58.  See  Alabama,  Code,  Sec. 
3112;  Florida,  Eq.  Eule  60;  Missis- 
sippi,  Code,   Sec.    590;    Pennsylva- 


466 


EQUITY  PRACTICE 


The  want  of  a  proper  affidavit  when  necessary  should 
be  taken  advantage  of  by  motion  to  have  the  answer 
taken  off  the  file,^*  but  it  is  held  that  the  court  may  allow 
an  answer  to  be  verified  after  the  objection  has  been 
raised.**  An  answer  of  several  defendants  signed  and 
sworn  to  by  only  a  portion  is  irregular  and  may  be  taken 
off  the  files  on  motion  **  unless  the  plaintiff  should  waive 
the  defect  by  replying  to  the  answer.**  Such  an  answer 
may  be  held  to  be  the  answer  only  of  those  defend- 
ants who  sign  and  verify,  unless  the  defect  is  waived.** 

§  270.  Filiiig.  The  answer  having  been  thus  prepared, 
it  must  be  filed  with  the  clerk  of  the  court  within  the 
time  limited  bv  the  statute  or  rule  of  court,"     If  no 


■ij^  Eq.  Bole  41;  TtmmtaaeBf  Code, 
Seta.  63)08-9;  Terraont,  Eq.  Bale 
23;  \lTgiBia,  Code,  See.  3282; 
Uaited  Statee,  Eq.  Bole  36L 

SBa.  See  aote  68,  port. 

SSL  Jaekson  t.  Dntton,  46  Fla. 
513  (1903);  Benier  t.-  Beraier,  73 
Mick.  43  (1888);  Holton  t.  Gman, 
65  Fed.  459  (a  a  1895),  aemble. 

eOL  Pinceis  t.  Bobertaoa,  24  INT. 
J.  K  348  (1874);  Buk  ▼.  Beaek, 
2  Paige  (S.  T.)  307  (1830);  Bailej 
WashiBg  V»»liiiiA  Co.  r.  Toniig,  F. 
C  751,  1  B.  &  A.  3G2,  12  Blatelif. 
199  (C.  C  1874). 

SL  Lee  t.  Biadley,  etc,  C'y     44 
Fla.  787  (1903),  semMe;  Xes 
DaBao,  7  G.  *  J.  (Md.)  4»4  « 1  ~ 
tembU;     IGt^ell     t.     Tb^ 
Sav.   luL,   53   IGss.   614    (1   ' 
FuhoB   Baak   t.   Beaeli,   2    :     . 
(X.  T.)  307  (1830). 

62.  Yooag  ▼.  ClarksriDe  Mfg. 
Go,  27  N.  J.  K  67  (1876);  Cook  ▼. 
I>e«s,  2  Tena.  Ck.  496  (1875); 
Bailey  Waskiag  Maekine  Co.  t. 
YooBg,  F.  a  751,  1  B.  ft  A.  362,  12 
Biatek£.  199  (C.  a  1874). 

63^  See  Ckapter  Xn  ("Demor- 
lera"),  aote  70,  «af^  ^l  415  ef  jeg. 


snflUBaiiiiBg  tke  praetiee  of  tke 
various  states  as  to  tke  tine  for 
filiag  demurrers,  wUek  is  geacr- 
ally  tke  sane  as  tke  paetiee  ia 
filing  aaswcxs.  See,  ia  additioa  to 
tke  rules  aad  statutes  tkere  cited, 
Joaes  T.  H?r^^.  *«  Miss.  99 
(1888);  Xei=r  '  :  ^  -piledStat- 
utes,   •    ""-   -  -        21;   Ver- 

■ftoat.  3  :-  Tirginia 

aad    "^  --    '    :-  ~-    ----- 


gardir. 

co<3e< 


Aa«e  fio  I 
to  be  filed  : 
fr.  SiBiatHia, 
McDtnald    ^ 
Mill  Co,  : 
1913);  Crlz 
465  (1873 
(dtfiuiiei  . 


Va. 


ANSWERS 


467 


answer  or  other  defence  is  filed  within  that  time,  the 
bill  may  be  taken  pro  confesso  as  a  matter  of  course  on 
motion  of  the  plaintiff."^  After  the  answer  has  been 
filed,  the  defendant  should,  on  the  same  day,  deliver  or 
mail  to  the  plaintiff  or  his  counsel  a  written  notice  of 
that  fact  together  with  a  copy  of  the  answer.''^  An  answer 
complete  in  every  respect  cannot  be  treated  as  an  an- 
swer until  the  party  has  filed  it.*^^ 


twenty  days  after  service  of  proc- 
ess,    Eq.  Rules  12,  16. 

If  the  last  day  for  filing  is  a 
legal  holiday,  the  answer  should  be 
filed  on  the  next  business  day. 
Feuchtwanger  v.  McCool,  29  N.  J. 
E.  151   (1878). 

There  can  be  no  objection  to  fil- 
ing an  answer  before  the  proper 
time.  White  v.  Cahal,  30  Teun. 
253  (1850);  Heyman  v.  Uhlman,  34 
Fed.  686  (C.  C.  1888). 

If  one  of  several  defendants  files 
an  answer  on  behalf  of  all,  and  the 
answer  is  timely  as  to  him  but  not 
as  to  the  others,  it  will  be  treated 
as  his  answer  only.  Young  v. 
Clarksville,  etc.,  Co.,  27  N.  J.  E.  67 
(1876). 

The    court    may    permit    an    an- 
swer   showing    a    meritorious     de- 
fence to  be  filed  after  the  expira- 
tion   of   the   usual   time,   for   good 
cause    shown.      See   the    rules    and 
statutes  cited  in  note  29  to  Chap- 
ter IX,  ante,  p.  370;  Smith  v.  Brit 
tenham,  88  111.  291   (1878),  semhle 
Oliver  v.  Palmer,  11  G.  &  J.  (Md.) 
137     (1840);     Vanderveer    v.    Hoi 
comb,  22  N.  J.  E.  555   (1871);  Mc 
Gregor   v.   Vermont,   etc.,   Co.,   104 
Fed.   709,  44  C.  C.  A.  709   (1900) 
Central  Trust  Co.  v.  Texas,  etc.,  R 
Co.,  23  Fed.  846  (C.  C.  1885). 

64.  See  Chapter  IX   ("Pro  Con 
fesso"),  Sec.  188,  ante,  p.  358. 

65.  Dan.  Ch.  Pr.   (6th  Am.  ed.), 


pp.  755  to  757.  This  is  not  ex- 
pressly required  by  chancery  rules, 
but  it  is  to  be  inferred  from  such 
rules  as  Maine  Rule  19,  New  Hamp- 
shire Rule  92  and  Rhode  Island, 
G.  L.,  Ch.  209,  Sec.  24,  requiring 
the  defendant  to  file  a  copy  of  his 
answer  for  the  plaintiff's  personal 
use.  It  is  so  required  by  the 
English  chancery  rules,  however, 
and  is  certainly  the  correct  prac- 
tice. In  the  English  practice,  no- 
tice must  be  given  on  the  second 
day  that  the  answer  is  filed,  and 
the  plaintiff  can  then  demand  a 
copy  any  time  after  four  days.  In 
Florida,  Rule  3  expressly  provides 
that  no  notice  of  filing  need  be 
given  the  opposing  party  unless 
specially  ordered  by  the  judge,  and 
in  any  case,  notice  to  counsel  is 
equivalent  to  notice  to  party  unless 
the  judge  specially  orders  other- 
wise. 

By  the  Tennessee  Code,  Sees. 
6210,  6234,  and  Rule  27  of  Dela- 
ware, the  clerk  of  the  court  noti- 
fies plaintiff  of  the  filing  of  the  an- 
swer. 

66.  Giles  v.  Eaton,  54  Me.  186 
(1866). 

After  the  defendant 's  death  it 
cannot  be  filed  by  his  solicitor, 
because  the  latter 's  authority  was 
revoked  by  death.  On  his  death 
his  executors  should  be  made  par- 
ties,  and   it   is   then  for  them   to 


468 


EQUITY  PRACTICE 


§  271.  Taking  answers  off  the  file.  If  an  answer  is  not 
properly  entitled,"'  or  is  not  signed  and  verified,"*  or  is 
filed  by  a  stranger  to  the  record,"''  or  is  filed  too  late,'** 
or  is  in  any  respect  irregular,^*  the  court  may,  upon 
motion  of  the  plaintilf,  order  it  to  be  taken  from  the 
files,  or  it  may  be  rejected  before  it  is  filed.  But  such 
irregularities  or  defects  in  fonu  are  waived  by  filing 
exceptions  or  a  o:eneral  rei^licatiou.'- 

§  272.  Exceptions  to  answers.  When  an  answer  has 
been  filed,  if  the  plaintiif  on  examination  believes  that 


decide  how  much  of  the  original 
draft  of  answer  can  be  utilized  in 
their  answer.    Ibid. 

67.  Fulton  County  v.  B.  Co.,  21 
111.  3.3S,  367  (1859);  Osgood  v.  A. 
S.  Aloe,  etc.,  Co.,  69  Fed.  291  (C.  C. 
1895). 

68.  King  V.  Bell,  5-1  Fla.  568 
(1907j;  Ballard  v.  Kennedv,  34 
Fla.  483  (1894);  Daugherty  v.  Car- 
mine, 103  X.  E.  1003  (ni.  1913); 
Bernier  v.  Bernier,  72  Mich.  43 
(1888);  Pincers  v.  Robertson,  24 
X.  J.  E.  348  (1874);  Holton  v. 
Guinn.  65  Fed.  4-50  (C.  C.  1S95). 

Bui  the  court  may  allow  the  an- 
swer to  be  signed  and  verified  at 
the  hearing,  nunc  pro  tunc.  Jack- 
son V.  Button,  46  Fla.  513  (1903); 
Bernier  v.  Bernier,  72  Mich.  43 
(1888);  Holton  v.  Guinn,  65  Fed. 
450   (C.  C.  1895). 

69.  Mechanics  Xat.  Bank  v. 
Burnet  Mfg.  Co.,  32  X.  J.  E.  236 
(1880),  scmhle:  Park  v.  Petroleum 
Co.,  25  W.  Va.  108  (1884);  Putnam 
V.  Xew  Albany,  4  Biss.  365,  367, 
F.  C.  11,481   (C.  C.  1869). 

70.  Allen  v.  Mayor,  etc.,  18 
Blatchf.  239  (C.  C.  1880). 

71.  Fulton  Co.  V.  Mississippi, 
etc.,  B.  Co.,  21  HI.  337  (1859) ; 
Maine.  Equity  Bule  10:  Michigan, 
Equity  Bule  10;   Bansom  v.  Ston- 


ington  Bank,  13  X.  J.  E.  212 
(1860);  Chem.  Co.  v.  Flowers,  6 
Paige  (X.  Y.)  654  (1837);  Am. 
Ins.  Co.  V.  Bayard,  3  Barb.  Ch. 
(X.  Y.)  610  (1845);  Bogers  v.  Ver- 
lander,  30  W.  Va.  619   (1888). 

In  Plum  V.  Smith,  56  X.  J.  E. 
468  (1898),  a  superfluous  formal 
clause  was  expunged  on  motion. 
And  in  practice,  a  motion  may 
often  relate  to  a  specified  portion 
of  an  answer  instead  of  to  the 
whole  answer.  See  McGorray  v. 
O'Connor.  87  Fed.  586,  31  C.  C.  A. 
114  (1898);  and  cases  above  in  this 
note. 

72.  Tllinois.  Fulton  County  t. 
Mississippi,  etc.,  B.  Co.,  21  111.  337 
(1857). 

Maryland.  Xesbitt  v.  Dallam,  7 
G.  &  J.  (Md.)  494  (1836). 

Michigan.  Bernier  v.  Bernier.  72 
Mich.  43   (1S3S). 

New  Jersey.  Young  v.  Clarks- 
ville  Mfg.  Co.,  27  X.  J.  E.  67 
(1S76'. 

New  York.  Fulton  Bank  v. 
Beach,  2  Paige  (X.  Y.)  307  (1830). 

Tennessee.  Cook  v.  Dews,  2 
Tenn.  Ch.  496   (1875). 

United  States.  Bailey  Washing 
Machine  Co.  v.  Young,  F.  C.  751, 
1  P.  &  A.  362,  12  Blatchf.  199 
(C.  C.  1874). 


ANSWERS 


469 


it  is  insufficient  or  that  it  contains  impertinent  or  scan- 
dalous matter,  his  proper  course  is  to  file  exceptions  to 
the  answer.'^ ^  In  most  jurisdictions,  the  objection  can- 
not be  raised  by  demurrer  or  motion.'^ ^  Exceptions  are 
allegations  in  writing,  stating  the  particular  points  or 
matter  with  respect  to  which  the  plaintiff  considers  the 
answer  insufficient,  impertinent  or  scandalous/^  The 
object  of  exceptions  is  to  direct  the  attention  of  the  court 
to  the  points  excepted  to,  and  to  obtain  the  opinion  of 
the  court  thereon  before  further  proceedings  are  had. 


73.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  758. 

74.  Glaser  v.  Meyrowitz,  119 
Ala.  152  (1898);  May  v.  Williams, 
17  Ala.  23  (1849);  Stone  v.  Moore, 
26  111.  115  (1861);  Fuller  v.  Knapp, 
24  Fed.  100  (C.  C.  1885). 

By  the  present  New  Jersey  prac- 
tice, though  exceptions  may  ap- 
parently still  be  brought  (see 
Equity  Rule  72),  yet  the  usual 
practice  is  to  test  the  insufficiency 
or  impertinence  of  portions  of  the 
bill  by  motion.  Synnot  v.  Kobbe, 
83  Atl.  193  (N.  J.  E.  1912) ;  Eq.  Eule 
213.  But  prior  to  the  adoption  of 
this  rule,  motions  in  such  circum- 
stances were  improper.  Travers  v. 
Ross,  14  N.  J.  E.  254  (1862).  And 
the  rule  is  not  interpreted  as  per- 
mitting the  filing  by  way  of  a  mo- 
tion of  what  is  actually  a  demur- 
rer to  the  answer.  Condict  v.  Erie, 
etc.,  R.  Co.,  77  N.  J.  E.  282  (1910). 

By  Equity  Rules  13  of  Mary- 
land and  10  of  Michigan,  a  special 
rnotion  may  be  made  in  lieu  of  ex- 
ceptions, at  least  for  impertinence 
or  scandal. 

In  the  Federal  practice  excep- 
tions are  now  abolished.  Equity 
Rule  32.  Scandal  or  impertinence 
may  be  suggested  by  the  court  or 
by  motion   of  the   opposing  party. 


Eq.  Rule  21.  Insufficiency  of  af- 
firmative defences  may  be  tested 
on  five  days '  notice,  or  within  such 
time  as  the  court  allows,  by  hear- 
ing on  motion;  if  the  defences  are 
found  insufficient  but  amendments 
are  possible,  the  court  will  allow 
these,  otherwise  will  strike  out  the 
insufficient  defences.     Eq.  Rule  32. 

75.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  759;  Richardson  v.  Donnehoo, 
16  W.  Va.  685  (1880);  Barrett  v. 
Twin  City  Power  Co.,  Ill  Fed.  45 
(C.   C.   1901). 

It  has  been  held  that  exceptions 
cannot  serve  as  the  equivalent  of 
a  demurrer  to  the  whole  answer. 
Hunt  V.  Turner,  54  Fla.  654  (1907) ; 
Blanton  v.  Chalmers,  158  Fed.  907 
(1908);  Wallser  v.  Jack,  88  Fed. 
576,  31  C.  C.  A.  462,  rev.  79  Fed. 
l;!8   (1898). 

But  in  Virginia  and  West  Vir- 
ginia the  contrary  seems  to  be  the 
practice.  Kelley  v.  Hamblen,  98 
Va.  383  (1900);  Ward  v.  Ward's 
Heirs,  50  W.  Va.  517  (1901);  Ben- 
nett v.  Pierce,  45  W.  Va.  654 
(1898);  Blair  v.  Core,  20  W.  Va. 
265  (1882).  And  so  of  exceptions 
to  answer  to  pure  bill  for  discovery 
in  Gorman  v.  Banigan,  22  R.  I.  22 
(1900). 


470 


EQOTY  PRACTICE 


to  the  end  that  if  it  contains  impertinent  or  soandalons 
matter,  such  matter  may  be  expimged.'^  Exceptions  lie 
only  for  insufficiency  and  impertinence  or  scandal,  and 
not  for  mere  irregularities  of  practice:  for  these  latter 
the  proper  course  is  to  move  to  have  the  answer  taken 
from  the  file."  Xevr  matter  in  an  answer,  wholly  unre- 
sponsive to  any  allegation  of  the  bill  may  be  the  subject 
of  exceptions  for  impertinence.'^  Statutes  or  rules  of 
court  usually  provide  a  time  limit  within  which  excep- 
tions must  be  filed,  if  at  all.  which  is  generally  the  same 
as  the  time  for  filing  replications,  in  those  jurisdictions 
where  replications  are  still  in  use.'® 


76.  Hunt  V.  Tnrner,  54  Fla.  654 
(1907);  Bieliardson  v.  Donnehoo, 
16  W.  Va.  685  (1880);  Barrett  v. 
Twin  City  Power  Co^  111  Tel.  4' 
(a  C.  1901). 

77.  See  eases  eite«i  ir  urtes  67  to 
71,  amte,  p.  468. 

78.  See  See.  274,  r        7    ^'?- 

78.  AJalwtma  Wit^:^  •xjda.ja 
after  answer  filed-  Code,  See. 
3131. 

Delaware.  Thirty  davs  after  no- 
ti:e  served  of  arswer  filed.  Eq. 
Eule   :?. 

Florida.  Xeit  rule  day  after  an- 
swer i.ei.     Eq.  Boles  20,  62;  G.  L.. 

Illinois.  WitMn  sneh  time  as 
the  court  may  direct.  J.  &  A. 
I  907;  Herd's  SUt,  Ch.  22,  See,  27. 

'**'•«»»*  Ten  days  after  notiee  re- 
ceived of  answer  filed.  Eq.  Rule 
19. 

WitnTyr*"'"*'**  WitMn  one 
montli  after  answer  referred  to  be 
filed,  or  if  it  is  filed  before  it  is 
referred,  then  within  one  month 
from  notice  of  the  filing.  Eq.  Bole 
16. 

•MiiiiiiMlmii  At  or  before  next 
term  after  aoswer  filed.    Code,  Sec 

eos. 


New  Hi-rs: 


ye-sr      Jersev 
days  from  ej- 
ited  or  grar.:T 
Comp.    St.,    ' 
(as  amen-3e<} 

Penr-JT^T- : 

swer 
days 


answer  filed. 


Chaneery, ' '   See.    25 
1913). 

Exceptions      for 
:;^-:v.  ;77enty  days  after  an- 
filed:    for   impertinenee,   ten 
after     answer     served.     Eq. 
Bnles  42,  45. 

Bhode  Island.  Ten  days  after 
notice  received  of  answer  filed.  6. 
L.,  Ch-  289,  Sec.  6. 

T—*"'—""  Twenty  days  after 
answer  filed-  Code,  Sec.  6210;  Eq. 
Bale  4. 

Vermont.  Ten  days  after  an- 
swer filed.    Eq.  Boles  27,  43. 

And  see  also  Chapter  AVl 
("Beptieations")>  Sec.  301,  note 
12,  po«f,  p.  516,  for  provisions  in 
the  various  states  for  filing  repli- 
eatioBS  which  are  generally  the 
same  as  for  filing  exceptions. 

It  is  too  late  to  file  exceptions 
two  years  after  the  answer  filed 
and   on   the   day  set  for   hearing. 


ANSWERS 


471 


§273.  Exceptions  for  insufficiency.  Under  the  pres- 
ent practice,  discovery  and  interrogatories  having  largely 
fallen  into  disuse,  the  only  case  in  which  exceptions  to 
answers  for  insufficiency  are  appropriate,  is  when  the 
answer  fails  to  answer  particularly  some  paragraph  of  the 
bill  by  either  admitting,  denying,  or  confessing  and  avoid- 
ing it.  The  powers  now  given  of  examining  the  defendant 
as  a  witness  have  rendered  exception  to  answers  useless 
in  many  cases  which  would  formerly  have  been  proper.^*^ 
The  question  of  sufficiency  is  now  viewed  as  a  ques- 
tion of  the  sufficiency  of  the  answer  as  a  pleading  to  put 
the  plaintiff's  allegations  in  issue,  rather  than  from  the 
point  of  view  of  its  sufficiency  as  a  disclosure  of  evi- 
dence.^^     Exceptions  should  therefore  not  be  taken  by 


Belt  V.  Blackburn,  28  Md.  227 
(1867). 

80.  Mr.  Heard  in  his  Eq.  PI.  p. 
99,  says  "It  must  be  observed, 
however,  that  although  the  rules 
as  to  the  sufficiency  of  an  answer 
are  exactly  the  same  as  they  were 
before  recent  legislation,  the  tem- 
per of  the  judges  in  dealing  with 
them  is  very  different,  and  the 
effect  of  certain  powers  given  by 
the  statutes  renders  excepting  to 
answers  in  most  cases  useless." 

But  it  is  not  that  the  temper  of 
the  judges  has  changed  while  the 
rules  have  remained  the  same.  The 
truth  is  as  expressly  held  in  Field 
v.  Hastings  &  Bradley  Co.,  65  Fed. 
279  (C.  C.  1895),  cited  in  note  27, 
under  Sec.  264,  ante,  p.  454,  that  the 
old  rules  as  to  sufficiency  of  an- 
swers, viewed  as  a  disclosure  of 
evidence,  no  longer  apply  to  an- 
swers which  are  today  almost  in- 
variably merely  defensive  plead- 
ings. Hence  in  that  case  excep- 
tions to  an  unsworn  answer  were 
overruled  where  the  defendant's 
answer     substantially    met     plain- 


tiff's case;  and  so  in  Holton  v. 
Guinn,  65  Fed.  450  (C.  C.  1895). 

81.  It  is  in  accordance  with  this 
view  usually  held  today  that  ex- 
ceptions for  insufficiency  lie  even 
to  an  answer  not  under  oath. 

Illinois.  Farrand  v.  Long,  184 
111.  100  (1900);  Bauerle  v.  Long, 
165  111.  340  (1896);  James  T.  Hair 
Co.  V.  Daily,  161  111.  379  (1896). 
But  see  Goodwin  v.  Bishop,  50  111. 
App.  145,  aff.  145  111.  421  (1893); 
Brown  v.  Scottish- American  Co., 
110  111.  235  (1884). 

New  Jersey.  Hageman  v.  Brown, 
76  N.  J.  E.  126  (1909),  here  the 
court  expressly  said  that  the  ab- 
sence of  interrogatories  did  not  ex- 
cuse the  defendant  from  answering 
fully.  Flitcroft  v.  Allenhurst  Club, 
69  N.  J.  E.  13  (1901),  answer  of 
a  corporation. 

Rhode  Island.  McTwiggan  v. 
Hunter,  19  E.  I.  68,  29  L.  E.  A. 
526  (1895);  Kelly  v.  Eyder,  18  E. 
L  455   (1894). 

United  States.  (Prior  to  1913 
Eules.)  National  Hollow,  etc.,  Co. 
V.  Interchangeable,  etc.,  Co.,  83  Fed. 


472 


EQUITY  PRACTICE 


counsel  on  any  of  tlie  old  grounds  of  insufficient  discov- 
ery, nor  on  mere  teclmieal  grounds  ^-  in  any  event,  but 
only  for  a  substantial  failure  to  meet  in  some  form,  par- 
agraph by  paragraph,  every  allegation  of  the  plaintiff's 
bill,  and  thus  give  notice  to  the  plaintiff  of  the  grounds 
of  defence  which  he  may  expect  to  encounter  to  each 
allegation. 

An  exception  to  an  answer  for  insufficiency^  however,  is 
always  proper  when  the  defendant  refuses  to  answer  a 
specific  allegation  on  the  ground  that  it  is  within  one 


26  (C.  C.  1897),  corporation  must 
answer  interrogatories  in  an  in- 
fringement bill,  though  answer 
sets  up  defences  which  might  have 
been  set  up  by  pleas;  Whittemore 
V.  Patten,  81  Fed.  527  (C  C.  1897)  ; 
Gamewell  v.  Mayor,  31  Fed.  312 
(C.  C.  1887),  corporation. 

In  some  states,  however,  it  has 
been  held  that  exceptions  do  not  lie 
in  such  case,  because  such  an  an- 
swer is  not  evidence  for  the  party 
making  it. 

Alabama.     Equitj^  Eule  34. 
Florida.      Pinellas   Co.   v.   Clear- 
water Assn.,  65  So.  591  (1914),  sem- 
hie. 

Michigan,  Morris  v.  Morris,  5 
Mich.  171    (1S58),  scmMe. 

New  Hampshire.  Equity  Eule 
85. 

Tennessee.  Sheppard  v.  Akers, 
1  Tenn.  Ch.  326  (1873). 

Vermont.  Blaisdell  v.  Stevens, 
16  Vermont  179  (1844). 

United  States.  (Prior  to  1913 
Eulos.)  Indiana,  etc.,  Co.  v.  Nich- 
ols, etc.,  Co.,  190  Fed.  579  (C.  C. 
Mich.  1911);  United  States  v.  Mc- 
Laughlin, 24  Fed.  823  (C.  C.  1885). 
In  Delaware,  no  exceptions  lie 
to  an  answer  for  insufficiency  when 
the  bill  contains  no  interrogatories. 
Eq.  Eule  23.     In  Massachusetts,  no 


exceptions  lie  except  to  the  answer 
to  a  bill  for  discovery.  Equity 
Eule  17;  Pearson  v.  Tread  well,  179 
Mass.  482   (1901). 

Exceptions  are  not  the  proper 
method  of  testing  the  merits  of 
the  answer  as  a  defence  to  the  bill. 
This  is  to  be  done  by  hearing  on 
bill  and  answ^er.  See  Louisville, 
etc.,  E.  Co.  v.  Wright,  190  Fed.  252 
(C.  C.  1911);  and  Section  281,  post, 
p.  485.  But  it  is  sometimes  stated 
that  exceptions  are  equivalent  to 
a  demurrer  to  the  answer.  Nor- 
folk V.  Norfolk  Co.  Water  Co.,  74 
S.  E.  226  (Va.  1912);  Keys,  etc., 
Co.  V.  Kirkbridge,  75  S.  E.  778  (Va. 
1912). 

82.  In  Heard's  Eq.  PI.,  p.  99,  the 
learned  author  well  says:  "Coun- 
sel of  experience  never  except  to 
answers  upon  merely  technical  in- 
sufficienc}';  and  only  do  so  in  very 
exceptional  cases  of  substantial  in- 
sufficiency. .  .  .  With  regard 
to  exceptions  for  merelj^  technical 
insufficiency,  when  the  defendant 
has  substantially  answered,  it  is 
sufficient  to  say  that  the  judges 
view  them  with  great  distaste  and 
displeasure,  as  an  abuse  of  the 
pleadings  of  the  court,  and  that 
counsel  of  experience  never  take 
them." 


ANSWERS  473 

of  the  exceptions  above  stated  to  tlie  general  rule  requir- 
ing an  answer  to  admit  or  deny  every  material  allegation 
of  the  bill,  and  that  therefore  he  is  not  bound  to  answer.^^ 

§  274.  Exceptions  for  impertinence  and  scandal.^^ 
Impertinence  in  answers  may  be  defined  in  the  same 
words  as  impertinence  in  bills,  viz.:  the  setting  out  of 
long  digressions  and  recitals  as  to  matters  of  fact  wholly 
immaterial  to  the  issue.  Scandal  is  the  allegation  of  any- 
thing which  it  is  unbecoming  the  dignity  of  the  court 
to  hear,  which  is  contrary  to  good  manners,  or  which 
unnecessarily  impugns  the  moral  character  of  some  per- 
son or  charges  him  with  a  crime.  It  will  be  seen  therefore 
that  all  scandalous  matter  is  also  necessarily  impertinent, 
but  not  all  impertinent  matter  is  scandalous.  The  best 
test  is  to  see  whether  the  subject  of  the  allegation  could  be 
put  in  issue  or  be  given  in  evidence  between  the  parties.^^ 

Thus,  when  a  bill  is  brought  by  one  part  owner  of  a 
vessel  against  the  other,  seeking  an  account  of  the  earn- 
ings, it  is  impertinent  for  the  answer  to  set  up  that  the 
plaintiff  is  indebted  to  the  defendants  in  certain  other 
accounts  which  have  no  connection  whatever  with  the 
transactions  set  forth  in  the  bill.^^^     So,  long  recitals  of 

83.  Heard's  Eq.  PI.,  p.  99;  Hunt  Illinois.  McConnell  v.  Holobush, 
T.  Gookin,  6  Vt.  462  (1834).  31  111.  61   (1849),  semble. 

84.  See  Chapter  V,  "Original  jjew  Jersey.  Crammer  v.  At- 
Bills"  Sees.  106  and  107,  ante,  pp.  lantic  City  Co.,  39  N.  J.  E.  76 
198  et  seq.  (1884). 

85.  Bush  V.  Adam,  22  Fla.  177  Tennessee.  Mrzena  v.  Brucker, 
(1886);    Spaulding   v.    Farwell,    62  .,  ^^^^^  ^^^  ^^^     ^ 

Me.    320    (1874);    Camden,   etc.    E. 

<-.  oi         i.in-\rT-t?o4o  United      States.        Harrison      v. 

Co.    V.    Stewart,    19    N.   J.    E.    343 

/10/30N     XT       •  T>      „     1AC  TT        Perea,  168  U.  S.  311,  42  L.  ed.  478 

(1863);   Harrison  v.  Perea,  168  L.  '  ' 

S    311    4"  L   ed   478  (1897)  (1897);    Johns-Pratt    Co.    v.   Sachs 

"'se.  Spaulding  V.  Farwell,' 62  Me.       ^o.,  176  Fed.  738   (C.  C.  1910),  im- 

^^0  (^H74)  pertinent  paragraph  struck  out  on 

c        £      .X.         i.  i  i        J! motion;   Whittemore  v.  Patten,  84 

So    of    other    statements    of    en-  '  _  ' 

tirely     unconnected     matters     im-  Fed.  51  (C.  C.  189/ ). 

ported  into  an  answer.  So  of  the   denial   in   the  answer 

Florida.     So.  Florida  Citrus,  etc.,  of    allegation    which    the    plaintiff 

Co.  V.  Walden,  59  Fla.  606   (1910).  did    not    make.      Osgood    v.    A.    S. 


474 


EQUITY  PRACTICE 


deeds  or  other  instruments  verbatim,  or  verbose  repe- 
titions of  superfluous  matter,  constitute  impertinence.*^ 
But  the  mere  fact  that  there  are  a  few  unneces- 
sary words  inserted  here  and  there  will  not  be  held 
impertinence,  and  exceptions  on  such  grounds  will  be 
overruled  as  vexations.^^  Where  exceptions  for  imper- 
tinence would  mutilate  the  answer  of  the  defendant  un- 
necessarily, if  allowed,  by  breaking  off  sentences  or 
clauses  which  ought  to  stand  or  fall  together,  the  excep- 
tions should  be  disallowed,^^  and  an  exception  for  imper- 
tinence will  be  overi'uled  if  the  expunging  of  the  mat- 


Aloe,  etc.,  Co.,  69  Fed  291  (C.  C, 
1895).  So  of  the  setting  forth  in 
the  answer  of  what  is  merely  evi- 
dence. Jolly  V.  Carter,  2  Edw.  Ch. 
(N.  Y.)  209  (1834).  Or  argument. 
Florida,  etc.,  Co.  v.  Finlayson,  74 
Fed.  671  (1896).  So  of  a  judgment 
attacked  collaterally.  Hastings  v. 
Bradley,  etc.,  Co.,  65  Fed.  279  (C.  C. 
1895);  Langdon  v.  Goddard,  3 
Story  13,  F.  C.  8061  (C.  C.  1843). 
So  of  an  attempt  to  impose  upon 
a  Federal  court  a  limitation  on 
procedural  rights  set  by  a  state 
statute.  Gamewell,  etc.,  Co.  v. 
Mayor,  31  Fed.  312  (C.  C.  1887).  So 
of  the  attempt  to  obtain  aflEirma- 
tive  relief  without  a  cross-bill. 
Armstrong  v.  Chemical  Bank,  37 
F^d.  466  (C.  C.  1889),  motion  to  ex- 
punge granted;  Chapman  v.  School 
District,  F.  C.  2607,  Deady  108 
(C.  C.  1865).  Or  of  a  statement 
of  what  is  erroneously  intended 
as  an  aflSrmative  defence.  Hutch- 
inson V.  Van  Voorhis,  54  N.  J.  E. 
439  (1896);  Greene  v.  Aurora,  etc., 
Co.,  158  Fed.  901  (C.  C.  1908); 
Osgood  V.  A.  S.  Aloe  Co.,  69  Fed. 
291  (C.  C.  1895). 

Examples  of  exceptions  allowed 
for  scandal  are  to  be  found  in 
Hutchinson  v.  Van  Voorhis,  54  N. 


J.     E.     439     (1896);     Johnson     v. 
Tucker,  2  Tenn.  Ch.  244  (1875). 

87.  Garr  v.  Hill,  6  N.  J.  E,  457 
(1847);  Johnson  v.  Tucker,  2  Tenn. 
Ch,  244  (1875);  Gier  v.  Gregg,  F. 
C.  5,406,  4  McL.  202  (C.  C.  1847). 
So  of  the  inclusion  of  formal  mat- 
ters made  unnecessary  by  the  rules 
of  practice.  Fairchild  v.  Fairchild, 
43  N.  J.  E.  473  (1887);  Crammer  v. 
Atlantic  City  Co.,  39  N.  J.  E.  76 
(1884). 

An  exception  brought  for  insuffi- 
ciency may  be  allowed  for  im- 
pertinence. Barrett  v.  Twin  City 
Power  Co.,  Ill  Fed.  45  (C.  C.  1901). 

88.  Hutchinson  v.  Van  Voorhis, 
54  N.  J.  E.  439  (1896);  Cleaves  v. 
Morrow,  2  Tenn.  Ch.  592  (1876). 
In  the  latter  case  and  in  Mercan- 
tile Trust  Co.  V.  Missouri,  etc.,  R. 
Co.,  84  Fed.  379  (C.  C.  1898),  it  is 
also  held  that  words  prima  facie 
scandalous  are  not  subject  to  ex- 
ception where  they  are  material  to 
the  controversy. 

89.  Franklin  v.  Keeler,  4  Paige 
(N.  Y.)  382  (1834);  Holzendorf  v. 
Terrell,  52  Fla.  525  (1906);  Eich- 
ardson  v.  Donnehoo,  16  W.  Va.  685 
(1880);  Mercantile  Trust  Co.  v. 
Missouri,  etc.,  E.  Co.,  84  Fed.  379 
(C.  C.  1898). 


ANSWERS 


475 


ter  excepted  to  will  leave  the  residue  of  the  clause  which 
is  not  covered  by  the  exceptions  either  false  or  wholly 
unintelligible.^"  The  insertion  of  impertinent  matter  in 
a  bill  does  not  justify  the  introduction  of  similar  matter  in 
response  thereto  in  the  answer.^"*  By  the  weight  of 
authority  however  in  such  case  exceptions  should  not  be 
taken  for  such  matter  in  the  answer."^ 

§  275.  Form  of  exceptions.  Exceptions  to  an  answer 
must  be  in  writing  and  properly  entitled  like  other  plead- 
ings in  the  cause,  and  must  be  signed  by  counsel.''^  They 
must  point  out  specifically  the  allegations  which  have 
not  been  sufficiently  met  by  the  answer,  or  the  matter 
which  is  claimed  to  be  impertinent  or  scandalous.^^  If 
the  defendants  answer  separately,  exceptions  must  be 


90.  Mclntyre  v.  Trustees,  6 
Paige  (N.  Y.)  239  (1837).  But  in 
Dr.  Miles  Medical  Co.  v.  Snellenburg, 
152  Fed.  661  (C.  C.  1907)  where 
there  were  obvious  impertinences, 
but  to  expunge  them  would  leave 
the  answer  disjointed,  the  court  di- 
rected the  defendant  to  file  an  en- 
tirely new  answer. 

Exceptions  for  impertinence  are 
of  course  overruled  when  they  re- 
fer to  a  pertinent  portion  of  the 
answer,  even  when  part  of  the  por- 
tion criticized  is  strictly  imperti- 
nent. Holzendorf  v.  Terrell,  52 
Fla.  525  (1906);  Robertson  v. 
Dunne,  45  Fla.  553  (1903) ;  Osgood 
v.  A.  S.  Aloe,  etc.,  Co.,  69  Fed.  291 
(C.  C.  Mo.  1895).  An  answer  that 
is  relevant  cannot  be  impertinent. 
Jones  v.  Hiller,  62  So.  583  (Fla. 
1913). 

90a.  Langdon  v.  Pickering,  19 
Me.  214  (1841). 

91.  Holzendorf  v.  Terrell,  52 
Fla.  525  (1906);  Hogeneamp  v. 
Ackerman,  10  N.  J.  E.  267  (1854) ; 


Mound  City  Co.  v.  Castleman,  171 
Fed.  520  (C.  C.  1906)  ;  Contra,  Lang- 
don V.  Pickering,  19  Me.  214 
(1841). 

92.  Hitchcock  v.  Rhodes,  42  N. 
J.  E.  495   (1887). 

93.  Florida.  Peck  v.  Osteen,  37 
Fla.  421   (1896);  Eq.  Rule  20. 

Illinois.  Jackson  v.  Kraft,  186 
111.  623   (1900). 

New  Jersey.  Mutual  Life,  etc., 
Co.  V.  Cokefair,  41  N.  J.  E.  142 
(1886). 

Pennsylvania.     Eq.  Rule  45. 

Rhode  Island.    Eq.  Rule  13. 

Vermont.     Eq.  Rules  43,  44. 

West  Virginia.  Ward  v.  Ward's 
Heirs,  50  W.  Va.  517  (1901);  San- 
dusky V.  Farris,  49  W.  Va.  150 
(1901). 

United  States.  Blanton  v. 
Chalmers,  158  Fed.  907  (C.  C.  1908)  ; 
McGorray  v.  O  'Connor,  87  Fed.  586, 
31  C.  C.  A.  114  (1898);  Bower- 
Banff  Iron  Co.  V.  Wells  Iron  Co., 
43  Fed.  391  (C.  C.  1890). 


476 


EQUITY  PRACTICE 


taken  to  each  answer,^^  but  if  jointly  and  severally,  only 
one  set  of  exceptions  can  be  tiled."'' 

§  276.  Procedure  on  exceptions.  Tlie  procedure  on 
excci)lioiis  \aiii's  in  dilTereiit  Jurisdictions.'"'  In  some 
states  they  are  disposed  of  only  by  the  court,  in  others 
by  reference  to  a  master,  in  still  others  either  course  may 
be  adoi)ted.'''    Liberty  to  amend  exceptions  may  be  given 


94.  Sydolph  V.  Monkston,  2 
Dick.  609. 

95.  Thomly  v.  .Toucs,  2  FowU.-r 
10. 

96.  See  the  following  rules  and 
statutes  showing  the  procedure  in 
the  various  states  in  regard  to  ex- 
ceptions. 

Alabama.  Eq.  Eules  35,  36,  37, 
38. 

Delaware.     Eq.  Rule  28. 

Florida.  G.  S.  See.  1869;  Eq. 
Eules  20,  63. 

lUinois.  ,T.  &  A.  11904;  Hurd's 
Stat.  Ch.  22,  Sec.  24.       • 

Maine.     Eq.  Rule  19. 

Massachusetts.     Eq.  Rule  17. 

Mississippi.     Code,  Sec.  602. 

New  Hampshire.     Eq.  Rule  96. 

New  Jersey.  Comp.  St.  "Chan- 
cery" Sees.  25,  26,  27;  Eq.  Rules 
72,  73,  75. 

Pennsylvania.  Eq.  Rules  43,  44, 
45. 

Rhode  Island.     Eq.  Rules  12,  29. 

Tennessee.  Code,  Sec.  6212;  Eq. 
Rules  4,  5. 

Vermont.  Eq.  Rules  25,  27,  35, 
42,  43.  44. 

West  Virginia.     Code,  Sec.  4808. 

97.  Alabama.  By  the  register, 
subject  to  appeal  to  chancellor. 
Eq.  Rules  35,  38. 

Delaware.  By  the  chancellor. 
Eq.  Rule  28. 

Florida.  By  the  judge,  in  case 
of  insufficiency;  apparently  either 
by  judge  or  master  in  case  of  scan- 


dal or  impertinence.  Eq.  Rules 
20,  63;  G.  S.  Sec.  1869. 

Maine.  By  reference  to  a  master 
or  otherwise  as  court  may  direct. 
Eq.  Rule  19. 

Massachusetts.  Referred  to  a 
master,  subject  to  exceptions  to 
the  court  from  his  report.  Eq. 
Rule  17. 

Mississippi.  In  vacation  re- 
ferred to  a  master;  in  term  time 
put  on  the  motion  docket.  Code, 
Sec.  602. 

New  Hampshire.  Decided  by 
the  justiie.     Eq.  Rule  96. 

New  Jersey.  Referred  to  master, 
subject  to  appeal  to  chancellor, 
unless  chancellor  decides  directly 
upon  the  exceptions.  Comp.  St. 
"Chancery"  Sec.  26;  Equity  Rules 
72,  73,  75. 

Pennsylvania.  Heard  before  a 
law  judge.     Eq.  Rules  43,  45. 

Khode  Island.  Referred  to  mas- 
ter or  considered  by  the  court.  Eq. 
Rule    12. 

Tennessee.  Clerk  to  act  on  ex- 
ceptions. Code,  Sec.  6212;  Eq. 
Rules  4,  5. 

Vermont.  Referred  to  master  or 
considered  by  the  chancellor.  Eq. 
Rules   35,   42,   43. 

West  Virginia.  The  court  may 
pass  upon  exceptions  to  the  an- 
swer on  hearing  in  vacation  on  mo- 
tion to  dissolve  injunction.  San- 
dusky V.  Faris,  49  W.  Va.  150 
(1901). 


ANSWERS 


477 


for  special  cause.'-^^  An  exception  for  insufficiency  may 
be  allowed  as  to  part  and  overruled  as  to  part  '''-^  but 
exceptions  for  impertinence  must  be  supported  m  toto 
or  overruled  altogether.^  Either  party  may  usually  have 
exceptions  set  for  hearing  although  the  defendant  may 
submit  to  them  at  once  without  a  hearing  if  they  are 
clearly  maintainable.  When  exceptions  are  overruled, 
the  plaintiff,  of  course,  proceeds  with  his  replication  or 
otherwise  as  if  no  exception  had  been  filed.  When  the 
defendant  submits  to  the  exceptions  or  they  are  sustained 
on  hearing,  the  proper  order  in  the  case  of  exceptions  for 
impertinence  or  scandal  is  that  the  matter  in  question  be 
expunged  from  the  answer  ;2  but  in  case  of  exceptions 
for  insufficiency,  the  regular  order  is  that  the  defendant 
answer  further,  and  the  court  will  appoint  a  time  within 
which  the  further  answer  must  be  filed  ^  or  the  bill  be 
taken  pro  confesso  or  process  for  contempt  issue. 


If  the  exceptions  are  not  at  once 
set  for  hearing,  they  are  consid- 
ered waived.  Hartman  v.  Evans, 
38  W.  Va.  669  (1893);  Code,  Sec. 
38,  74. 

In  the  former  Federal  practice, 
it  was  improper  to  refer  exceptions 
to  a  master  unless  the  informality 
was  cured  later  by  direct  action  of 
the  court  upon  the  exceptions.  La 
Vega  V.  Lapsley,  1  Woods  428,  F. 
C.  8,123  (1871). 

Costs  may  be  imposed  in  the  case 
of  impertinence  and  scandal  upon 
the  counsel  who  signed  the  answer. 
Sommers  v.  Torrey,  5  Paige  (N.  Y.) 
54  (1835). 

98.  Whittemore  v.  Patten,  84 
Fed.  51  (C.  C.  1897). 

99.  East  India  Co.  v.  Campbell, 
1  Ves.  Sr.  247. 

1.  Holzendorf  v.  Terrell,  52  Fla. 
525  (1906);  Desplaces  v.  Goris,  1 
Edw.  Ch.  (N.  Y.)  350  (1832);  Van 
Eenssellaer   v.  Price,  4   Paige    (N. 


Y.)  174  (1833);  Mound  City  Co.  v. 
Castleman,     171    Fed.    520     (C.    C. 

1906)  ;  Osgood  v.  A.  S.  Aloe  Instru- 
ment Co.,  69  Fed.  291  (C.  C.  1895). 

2.  This  should  be  done  by  taking 
answer  off  the  file  and  substituting 
another  draft  with  the  objection- 
able matter  omitted;  although  in 
some  cases  the  court  will  allow 
erasures  to  be  made  in  the  an- 
swer on  file.  Fulton  Co.  v.  Missis- 
sippi, etc.,  R.  Co.,  21  111.  337 
(1859),  semble.  And  see  Equity 
Rules  37  of  Alabama,  12  of  Rhode 
Island  and  43  and  44  of  Vermont. 
Put  in  Dr.  Miles  Medical  Co.  v. 
Snellenburg,    152    Fed.    661    (C.    C. 

1907)  the  court  directed  the  de- 
fendant to  file  an  entirely  new  an- 
swer. 

3,  Alabama.    Eq.  Rule  36. 
Delaware.    Eq.  Rule  28. 
Florida.     Eq.  Rules  64,  65;  G.  S. 

Sec.   1869. 


478 


EQUITY  PRACTICE 


§  277.  Further  answers.  A  further  answer  is  simply 
in  addition  to  the  original,  and  is  considered  as  a  part 
of  it,  and  should  only  answer  those  allegations  which 
the  original  answer  failed  to  meet.^  After  exceptions 
have  been  submitted  to  or  sustained,  the  plaintiff  may,  if 
he  wishes,  have  leave  to  amend  his  bill  ^  and  in  case  he 
does  so,  the  defendant  may  combine  his  answer  to  the 
amended  portion  of  the  bill  with  his  further  answer  to 


Illinois.  J.  &  A.  1904;  Hurd's 
Stat.  Ch.  22,  Sec.  24. 

Massachusetts.    Eq.  Rule  17. 

New  Hampshire.     Eq.  Rule  96. 

New  Jersey.  Comp.  St.  ' '  Chau- 
eery"  Sec.  27. 

Pennsylvania.    Eq.  Rule  44. 

Rhode  Island.     Eq.  Rule  29. 

Tennessee.  Code,  Sec.  6212;  Eq. 
Rule  5. 

Vermont.     Eq.  Rule  25 

Costs  follow  for  the  prevailing 
party  if  exceptions  go  to  a  hear- 
ing. Florida,  G.  S.  Sec.  1869,  Eq. 
Rule  6.5;  Maryland,  Code,  Art.  16, 
Sec.  171;  Rhode  Island,  Eq.  Rule 
12;  Tennessee,  Code,  Sec.  6215. 
Sometimes  double  costs  follow  if 
the  new  answer  is  held  insufficient. 
Massachusetts  Eq.  Rule  17;  New 
York,  Comp.  St.  "Chancery"  Sec. 
26;  Vermont  Equity  Rules  25,  49. 
In  New  Jersey  treble  costs  may  be 
awarded  if  third  answer  is  insufii- 
cient.  Comp.  St.  "Chancery"  Sec. 
27. 

4.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
776.  Repetition  in  the  further  an- 
swer of  matter  contained  in  the 
first  may  be  treated  as  impertinent. 
Bowen  v.  Idley,  6  Paige  (X.  Y.) 
46  (18.36).  The  amending  of  a  bill 
materially  entitles  the  defendant 
to  make  further  answer.  Florida 
Eq.  Rule  59;  Maryland,  Code,  Art. 
16,  Sec.  164,  Eq.  Rule  30;  Missis- 
sippi, Code,  Sec.  595;  New  Hamp- 


shire Eq.  Rule  95;  Pennsylvania 
Eq.  Rule  51;  Tennessee,  Code,  Sec. 
6146;  Vermont  Eq.  Rule  10.  But 
purely  formal  amendments  to  a  bill 
will  not  permit  the  defendant  to 
file  further  answer,  and  in  no  case 
does  an  amendment  to  a  bill  per- 
mit the  defendant  to  file  a  new 
answer  to  original  portions  of  the 
bill  which  have  not  been  amended. 
Bauer,  etc.,  Co.  v.  Zelle,  122  111. 
407  (1898);  Casserly  v.  Waite,  124 
Mich.  157,  83  A.  s'  R.  25  (1900} ; 
Dyer  v.  Cranston,  etc.,  Co.,  20  R.  I. 
143   (1897) 

If  a  bill  is  amended  before  an- 
swer the  defendant  should  answer 
the  whole  bill  as  amended  without 
paying  any  attention  to  the  orig- 
inal bill.  Dan.  Ch.  Pr.  (6th  Am. 
ed.),  p.  777,  citing  Smith  v.  Bryon, 
3  Nad.  428. 

The  court  may  refuse  to  allow  a 
further  answer  to  be  filed  after 
exceptions  for  insufficiency  sus- 
tained if  such  answer  alleges  no 
new  matters  which  could  make  a 
new  defence.  Chicago  Title,  etc., 
Co.  V.  Yates,  211  HI.  99  (1904). 

5.  See  Equity  Rules  67  and  73 
of  Xew  Jersey,  43  of  Pennsylvania, 
24  of  Rhode  Island. 

In  Massachusetts,  plaintiff  may 
amend  his  bill  to  meet  the  answer 
and  at  the  same  time  except  to  de- 
f  emlant  's  answer.  Equity  Rule 
20. 


ANSWERS 


479 


the  allegations  not  met  by  tlie  original  answer.^  A 
further  answer  should  be  entitled  "The  further  answer 
of  A.  B.  to  the  bill  of  complaint  of  CD."  and  if  an  answer 
to  amendments  of  the  bill  is  to  be  combined,  there  should 
be  added  to  the  above  the  words  * '  and  the  answer  of  said 
A.  B.  to  the  amended  bill  of  complaint  of  the  said  C.  D." 

If  the  further  answer  or  the  answer  to  the  amended  bill 
is  also  insufficient,  the  plaintiff  may  again  excepts  But 
it  is  to  be  noted  that  if  the  plaintiff  amends  his  bill  after 
answer,  but  before  having  excepted  to  the  answer,  he  is 
thereby  deemed  to  admit  the  sufficiency  of  the  answer.^ 
Consequently  when  he  neglects  to  except  to  the  original 
answer  in  the  first  instance,  or  where  his  exceptions  have 
been  overruled  and  he  then  amends  his  bill,  he  cannot 
thereafter  except  to  the  original  answer  or  to  the  answer 
to  his  amended  bill  for  insufficiency  on  the  ground  that 
the  original  bill  was  not  fully  answered.^ 


6.  See  Equity  Eules  20  of  Massa- 
chusetts, 67  and  73  of  New  Jersey. 

In  some  jurisdictions  if  a  suffi- 
cient answer  is  filed  before  the 
hearing  on  exceptions,  it  will  be 
received  without  costs.  See  Equity 
Eule  97  of  New  Hampshire.  But 
in  others  the  defendant  must  pay 
costs.  See  Equity  Eule  73  of  New 
Jersey. 

7.  This  is  a  principle  of  general 
chancery  practice;  but  expressly 
true  by  Equity  Eule  28  of  Dela- 
ware. 

In  some  jurisdictions,  if  a  sec- 
ond answer  is  insufficient  after  ex- 
ceptions sustained,  the  defendant 
may  be  required  to  answer  inter- 
rogatories, on  penalty  of  punish- 
ment for  contempt,  or  on  motion 
the  second  answer  may  be  struck 
out  and  the  bill  taken  pro  confesso. 
Illinois,  J.  &  A.  H  904;  Kurd's  Stat. 
eh.  22,  Sec.  24;  Tennessee,  Code, 
Sec.  6217;  Virginia,  Code,  Sec.  3277; 


West  Virginia,  Code,  Sec.  4808.  In 
New  Jersey,  the  same  proceedings 
take  place  when  the  second  answer 
is  insufficient  as  in  the  case  of  the 
original  answer  (Equity  Eule  74), 
but  by  statute  double  or  treble 
costs  may  be  imposed,  and  pro  con- 
fesso taken  if  the  third  answer  is 
insufficient.  Comp.  St.  "Chan 
eery"  Sec.  27. 

8.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p 
762.  So  exceptions  are  superseded 
by  an  amendment  pending  a  de 
cision  upon  them.  De  la  Torre  v 
Bernales,  4  Mod.  396.  Except 
where  the  amendment  does  not  re 
late  to  the  merits.  Miller  v 
Wheatley,  1  Sim.  296;  Taylor  v 
Wrench,  9  Ves.  315. 

9.  Chazournes  v.  Mills,  2  Barb 
(N.  Y.)  466  (1847);  Wich  v 
Parker,  22  Beav.  59. 

Unless  the  defendant  chooses  to 
let  his  original  answer  stand  as 
answer  to  the  amended  bill.    Angel 


480 


EQUITY  PRACTICE 


§  278.  Amendment  of  answers.  The  question  whether 
an  answer  may  be  amended,  rests  entirely  within  the 
discretion  of  the  court.  In  mere  matters  of  form,  cler- 
ical mistakes  or  verbal  inaccuracies,  great  indulgence  is 
shown  in  allowing  amendments  even  in  sworn  answers. 
But  applications  to  amend  in  material  facts  or  to  change 
essentially  the  grounds  taken  in  the  original  answer,  are 
granted  with  great  caution  and  only  where  it  is  manifest 
that    the    purpose    of    substantial   justice    require    it.^*^ 


V,   Penua.   E.   Co.,   37   N.   J.   E.   92 
(1883). 

10.  Huffman  v.  Hummer,  17  X.  J. 
E.  269,  271  (18(35),  where  amend- 
ment was  not  permitted,  because 
of  informalities  in  the  way  it  was 
presented  to  the  court  for  consid- 
eration, and  because  the  proposed 
amendment  was  unnecessary  fur 
the  protection  of  defendant 's 
rights.  See  also  Equity  Rules  61 
of  Florida,  16  of  Michigan,  18  of 
New  Hampshire,  52  of  Pennsyl- 
vania, 27  of  Rhode  Island.  The 
history  of  the  right  to  amend  the 
answer  is  given  in  Ex  parte  Ash- 
urst,  100  Ala.  573  (1892). 

Thus  in  Fulton  v.  Gilmore,  3 
Beav.  154,  leave  was  given  after 
the  cause  was  at  issue  to  file  a. 
supplemental  answer  to  correct  an 
important  date.  So  in  McMichael 
V.  Brennan,  31  N.  J.  E.  496  (1870), 
an  omission  of  the  names  of  the 
parties  from  an  unsworn  answer 
by  mistake  of  the  solicitor  was 
held  to  be  amendable  after  repli- 
cation and  testimony;  and  in  Ar- 
naud  V.  Grigg,  29  N.  .T.  E.  1  (1878) 
statements  omitted  through  solic- 
itor's mistake,  which  Avent  to  sup- 
port the  defence  set  up  by  the  an- 
swer, but  which  were  probably  im- 
material, were  allowed  to  be  in- 
serted   after    evidence    was    closed 


and  the  case  set  for  final  hearing; 
and  in  Dagly  v.  Crump,  1  Dick.  35, 
a  defendant  was  allowed  to  amend 
his  answer  by  limiting  an  import- 
ant admission  of  assets  therein 
which  had  been  made  by  careless 
mistake  of  the  solicitor.  So  in 
Ehelnfort  v.  Abel,  74  Atl.  479  (N. 
J.  E.  1909)  an  answer  under  oath 
was  amended  in  a  matter  of  form. 
So  in  Hann  v.  Barnegat,  etc.,  Co., 
8  Atl.  531  (N.  J.  E.  1887),  the  de- 
fendant was  allowed  to  set  up  the 
statute  of  frauds  after  the  plain- 
tiff had  closed  his  testimony.  So 
in  Loach  v.  Ansbachor,  55  Pa.  85 
(1867),  the  defendant  was  allowed 
on  aflSdavit  of  mistake  to  deny 
failure  of  notice,  after  the  court 
had  granted  a  preliminary  injunc 
tion  chiefly  because  of  the  lack  of 
this  allegation.  So  in  Depue  v. 
Sargent,  21  W.  Va.  326  (1883),  it 
was  held  that  the  lower  court 
should  have  permitted  defendant 
to  amend  his  answer  after  evi- 
dence had  been  taken,  to  conform 
to  the  proof. 

In  Third  Avenue  Savings  Bank  v. 
Dimock,  24  N.  J.  E.  26  (1873),  the 
court  declined  to  allow  an  amend- 
ment of  the  answer  to  a  foreclos- 
ure bill  so  as  to  set  up  that  plain- 
tiff had  acted  ultra  vires  in  taking 
the  mortgage.    So  in  Ritchie  v.  Mc- 


ANSWERS 


481 


Amendments  will  not  be  allowed  wliicli  introduce  new 
grounds  of  defence  existing  and  known  to  the  defendant 
when  he  filed  his  answer,^^  and  for  obvious  reasons  tlie 
court  is  slower  to  allow  amendments  to  sworn  answers 
than  it  is  to  answers  not  under  oatli.^-  But  new  matter 
which  has  occurred  since  the  filing  of  the  answer  may  be 
introduced  by  amendment.^^    An  amendment  will  not  be 


Mullen,  79  Fed.  522,  25  C.  C.  A.  50 ; 
modifying  64  Fed.  253  (1892-4),  cer- 
tiorari denied  168  U.  S.  710,  42 
L.  ed.  121  (1897),  the  court  held 
that  on  an  application  for  leave 
to  amend  an  answer  the  court  can 
go  into  the  question  of  whether 
the  new  facts  constitute  a  proper 
defence,  and  here  permission  to 
amend  was  refused,  on  all  the  cir- 
cumstances. 

It  seems  that  a  court  is  more 
strict  in  permitting  amendments  to 
an  answer  than  to  a  bill.  RatlifC 
V.  Somers,  55  W.  Va.  30  (1904). 

Leave  to  amend  must  always  be 
asked  in  the  case  of  material 
amendments,  but  in  some  jurisdic- 
tions need  not  be  asked  for  minor 
amendments.  Roberts  v.  Stigle- 
man,  78  111.  120  (1875);  Matthews 
V.  Dunbar,  3  W.  Va.  138  (1869); 
Equity  Rules  16  of  Michigan,  18 
of  New  Hampshire,  26  of  Rhode 
Island. 

11.  Alabama.  See  Ex  parte 
Ashurst,  100  Ala.  573   (1892). 

Illinois.  Higgins  v.  Curtiss,  82 
111.   28    (1876). 

Maine.  Howe  v.  Russell,  36  Me. 
115   (1853). 

New  Jersey.  Marsh  v.  Mitchell, 
26  N.  J.  E.  497  (1875). 

Tennessee.  Chattanooga  Grocery 
Co.  V.  Livingston,  59  S.  W.  470 
(Tenn.  Ch.  App.  1900);  Peterson 
V.  Turney,  2  Tenn.  Ch.  App.  519 
(1897). 

Whitehouse  E.  P.  Vol.  I — 31 


Virginia.  Elder's  Exors.  v.  Har- 
ris, 76  Va.  187  (1882). 

West  Virginia.  Loar  v.  Will- 
fong,  63  W.  Va.  306  (1908);  Fout- 
ley  v.  Poar,  35  W.  Va.  70  (1891). 

United  States.  Schultz  v. 
Phoenix  Ins.  Co.,  77  Fed.  375  (C.  C. 
1896),  here  the  bill  disproved  de- 
fendant 's  statement  that  it  had 
now  for  the  first  time  learned  of  a 
certain  matter  of  defence;  Gub- 
bins  V.  Laughtenschlager,  75  Fed. 
615   (C.  C.  1896). 

Or  to  set  up  immaterial  and  ir- 
relevant new  matter.  McKay  v. 
McKay's  Admr.,  33  W.  Va.  724 
(1890);  Tracewell  v.  Boggs,  14  W. 
Va.  254  (1878).  Or  to  set  up  mat- 
ters already  set  up  and  vigorously 
insisted  on  by  another  defendant. 
Mech.  N.  B.  v.  Burnet  Mfg.  Co., 
32  N.  J.  E.  236  (1880). 

Statutory  provisions  permitting 
the  filing  of  answer  at  any  time  be- 
fore final  decree  do  not  require  the 
court  to  allow  a  supplemental  an- 
swer to  be  filed  when  there  has 
been  laches  in  bringing  forward 
the  defence.  Elder 's  Exors.  v. 
Harris,  76  Va.   187   (1882). 

12.  Maher  v.  Bull,  39  111.  531 
(1864);  Wilson  v.  Wintermute,  27 
N.  J.  E.  63  (1876);  Matthews  v. 
Dunbar,  3  W.  Va.  138  (1869);  Cross 
V.  Morgan,  6  Fed.  241  (C.  C.  1881). 

13.  Hall  V.  Howe,  etc.,  Co.,  56 
N.  J.  E.  304  (1897);  Barnegatt, 
etc.,  Assn.  v.  Busby,  20  Atl.  214  (N. 


482 


EQUITY  PRACTICE 


allowed  however  merely  on  the  ground  that  the  defend- 
ant, at  the  time  he  i)iit  in  his  answer,  was  acting  under  a 
mistake  in  a  point  of  hiw.^^ 

§  279.  Time  within  which  amendments  may  be  allowed. 
There  seems  to  be  no  limit  to  the  time  within  which  an 
application  to  amend  may  be  granted. ^"^  Thus  leave  has 
been  granted  after  replication  "'  and  after  the  cause  has 
been  set  down  for  hearing.*^    And  even  at  the  close  of  the 


J.  E.  1890);  Furman  v.  North,  63 
Tenn.  296  (1874),  semble;  Ward 
V.  Ward's  Heirs,  50  W.  Va.  517 
(1901),  semble. 

Such  amendment  may  be  either 
in  the  form  of  a  supplemental  an- 
swer or  by  motion  to  amend. 
Smith  V.  Smith,  4  Paige  (X.  Y.) 
432    (1834). 

In  Story's  Eq.  PI.  (10th  ed.), 
Sec.  903,  it  is  said  that  such  new 
matter  can  only  be  introduced 
properly  by  a  supplemental  bill; 
but  in  Barnegatt,  etc.,  Assn.  v. 
Busby,  20  Atl.  214  (X!  J.  E.  1890), 
where  this  authority  was  relied 
on,  it  was  held  that  "There  can  be 
nothing  more  absurd  than  to  com- 
pel the  parties  to  travel  the  same 
road  twice  to  determine  their 
rights,  when  it  is  known  before  the 
hearing  begins  that  one  important 
and  perhaps  vital  element  has  been 
precluded  from  the  controversy  by 
mere  matter  of  form." 

In  Hackley  v.  Mack,  60  Mich. 
591  (1886),  the  court  refused  to  al- 
low the  defendant  to  present  an 
affirmative  defence  under  a  rule 
permitting  such  defences  which 
was  adopted  pendente  lite. 

An  amendment  to  the  answer 
may  in  Alabama  introduce  plea  or 
demurrer.  Harland  v.  Person,  93 
Ala.  273  (1890;i;  Reese  v.  Brom- 
berg,  88  Ala.  619  (1889);  Shaw  v. 
Lindsay,  60  Ala.  344  (1877). 


14.  Rawlins  v.  Powel,  1  P.  Wms. 
300;  Pearce  v.  Grove,  3  Atk.  522. 
But  in  Xail  v.  Punter,  4  Sim.  474, 
leave  was  given  to  a  defendant  to 
amend  by  stating  facts  which  she 
had  desired  to  state  in  her  answer 
but  which  she  had  been  prevailed 
upon  to  omit  by  the  mistaken  ad- 
vice of  her  solicitor.  And  in  Bur- 
gen  V.  Giberson,  23  X.  J.  E.  403 
(1873)  the  defendant  was  allowed 
to  amend  in  order  to  insert  a  de- 
fence of  which  he  did  not  inform 
the  solicitor  who  drew  the  answer, 
because  of  the  advice  of  another 
lawyer  to  the  effect  that  it  was  im- 
material. 

15.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
782.  See  Alabama  Code,  Sec.  3126, 
and  Equity  Rules  61  of  Florida,  16 
of  Michigan,  52  of  Pennsylvania, 
27  of  Rhode  Island,  28  of  Vermont, 
30  of  the  United  States  courts. 

16.  Burgin  v.  Giberson,  23  N,  J. 
E.  403  (1873).  But  such  amend- 
ments are  rarely  allowed  and  only 
after  the  court  is  satisfied  as  to 
the  propriety  of  allowing  them. 

17.  Tillinghast  v.  Champlin,  4  R. 
I.  128  (1856). 

By  leave  of  court,  an  answer  may 
be  withdrawn  and  a  plea  filed  even 
after  the  case  is  before  the  master 
and  proofs  partly  taken.  Stephens 
V.  St.  Louis,  etc.,  Co.,  103  X.  E.  190 
(111.  1913). 


ANSWERS  483 

evidence,  a  defendant  has  been  permitted  to  amend  liis 
answer. ^^  But  the  court  is  reluctant  to  allow  amendments 
setting  up  new  matter,  as  for  instance  a  discharge  in 
bankruptcy,  after  evidence  has  been  taken,  especially 
when  no  satisfactory  reason  is  given  for  neglecting  to  rely 
on  the  matter  in  the  original  answer.^  ^ 

§  280.  Amendments — How  made.  Leave  to  amend  any 
merely  formal  or  clerical  error  may  be  had  upon  request 
to  the  court,  or  sometimes  such  amendments  may  be  made 
even  without  obtaining  formal  peiTuission,  and  the  error 
may  be  corrected  by  making  the  alteration  in  the  orig- 
inal answer  on  the  file.  But  application  to  amend  in  any 
material  matter  should  be  made  by  petition,  or  motion 
in  writing  as  it  is  more  commonly  called,  in  which  the 
defendant  asks  leave  of  the  court  to  amend  his  answer  by 
striking  out  certain  words  or  inserting  other  words  or 
both,  setting  out  verhafim  the  words  M^hicli  he  desires  to 
strike  out  or  insert.  This  request  should  then  be  supple- 
mented by  an  affidavit  showing  a  sufficient  reason  why 
the  additional  matter  was  not  inserted  in  the  original 
answer,  such  as  want  of  knowledge  of  such  facts,  mis- 
take, and  the  like'*^  and  a  copy  of  the  whole  petition 

18.  Scott   V.   Harris,  113  111.  447  v.  Reading,  9  N.  J.  E.  446  (1853). 
(1885),    statute    of    frauds,    after  Tennessee.     Peterson  v.  Turney, 
hearing   and   before   rehearing   for  2   Tenn.   Ch.  App.  519    (1897). 
which  plaintiff  had  asked;  Haskell           Virginia.     Elder's  Exrs.  v.  Har- 
V.  Brown,  65  111.  29   (1872);  Balen  ris,  76  Va.  187   (1882). 

V.    Mercier,    75    Mich.    42    (1889);  West    Virginia.      Loar    v.    Will- 

Hauserd     v.     Gray,     46     Miss.     75  fong,  63  W.  Va.  306   (1908). 

(1871),    after    the    case    had    been  United      States.        Gribbens      v. 

remanded   to   the   chancellor   after  Langhtenschlager,  75  Fed.  615  (C.  C. 

an  appeal;   Arnet  v.  Welch,  46  N.  1896);    India   Rubber,   etc.,    Co.   v. 

J.    E.    543     (1890),    allowed    even  Phelps,  F.  C.  7,025,  8  Blatehf.  851, 

after  court  had  announced  its  de-  4  Fish.  P.  C.  315  (1870). 

cision.  20.  Illinois.      Maher    v.   Bull,    39 

19.  Alabama.      McMinn   v.   Kar-  111.  531   (1864). 

ter,  116  Ala.  .390   (1896).  Michigan.     Equity  Rule  17. 

Illinois.     Foster   v.  Van  Ostcrn,  New  Jersey.     Huffman  v.  Hum- 

72  111.  App.  307   (1897).  mer,  17  N.  ,T.  E.  269  (1865). 

New  Jersey.     Marsh  v.  Mitchell,  Pennsylvania.      Equity   Rule   52. 

26  N.  J.  E.  497  (1875);  Vandervere  Rhode  Island.    Equity  Rule  27. 


484  EQUITY  PRACTICE 

should  then  be  mailed  or  delivered  to  the  plaintiff  or  his 
solicitor,-^  and  the  time  fixed  for  a  hearing  by  informal 
agreement  between  eonnsel  or  by  written  notice  to  the 
plaintiff  that  tlie  defendant  will  move  the  court  to  have 
the  petition  allowed  at  such  a  time  and  place.^-  Then 
according  to  the  practice  of  some  jurisdictions,  if  the 
amendment  is  allowed  by  the  court,  that  fact  is  simply 
entered  in  the  docket  and  the  petition  stands  upon  the 
file  and  the  answer  is  considered  as  amended  ipso  facto,  in 
accordance  with  the  alterations  and  additions  "specified 
in  the  petition,  without  filing  any  supplemental  answer 
or  taking  it  off  the  file,  or  without  altering  the  original 
answer,-^  but  in  general  chancery  practice  one  of  the 
latter  methods  is  employed.-^  If  the  alterations  and  addi- 
tions proposed  in  an  answer  are  numerous,  extensive  and 
important,  the  defendant  may  simply  ask  leave  to  file  a 
new  amended  answer,  which  should  be  filed  with  the 
motion  in  writing  in  the  form  of  a  complete  and  perfect 
answer,  and  a  copy  thereof  and  of  such  written  motion 
should  be  mailed  or  delivered  to  the  plaintiff  or  his 
solicitor  and  the  time  fixed  for  hearing  as  above  indi- 
cated. If  the  motion  is  allowed,  the  new  answer  becomes 
the  answer  of  the  defendant  in  the  suit  although  the 
original  answer  still  remains  on  the  file. 

21.  So  expressly  by  Equity  Eule  without  leave,  either  a  new  en- 
94  of  New  Hampshire;  but  this  is  grossment  of  the  pleading  or  a 
true   in  general   chancery  practice.  copy    of    the    amendment    shall    be 

22.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  filed.  The  court  may  order  a  sep- 
p.   781.  arate      engrossment      in      Pennsyl- 

23.  So  in  Maine.  Whitehouse's  vania.  Eq.  Eule  52.  See  Alabama 
(Maine)   Eq.  Pr.,  p.  417.  Eq.  Eule  39. 

24.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  In  general  chancery  practice, 
p.  780,  784.  the  original  answer  should  not  be 

In        Mississippi,        amendments  altered  and  erased  except  possibly 

should  be  on  a  separate  paper  ex-  in  the  case  of  scandal  or  imperti- 

cept    where    brief,    in    which    case  nence.     Fulton   Co.   v.   Mississippi, 

they  may  be  interlined  in  ink  of  a  etc.,    R.    Co.,    21    111.    337    (1859); 

different  color,  or  erasures  may  be  Huffman   v.   Hummer,   17   N.  J.  E. 

made    with    such    ink.      Code,   Sec.  269    (1865);   Morrill  v.  Morrill,  53 

596.     By  Equity  Rule  17  of  Mich-  Vt.  74,  38  Am.  Rep.  659  (1880). 
igan,  where  an  amendment  is  made 


ANSWERS 


485 


§281.  Setting  cause  for  hearing  on  bill  and  answer. 
It  is  provided  by  rules  or  statutes,  in  accordance  with 
what  is  doubtless  a  general  jDrinciple  of  chancery  prac- 
tice, that  when  an  answer  is  filed,  upon  the  motion  of  the 
plaintiff  the  cause  may  be  for  hearing  upon  bill  and 
answer  alone.^^  When  a  cause  is  thus  set  down  to  be 
heard  on  bill  and  answer,  the  plaintiff  is  held  to  have 
waived  his  replication  and  the  answer  must  be  taken  as 
true  as  to  all  its  allegations  whether  in  denial  or  in  con- 
fession and  avoidance.-*'     If  however  the  plaintiff  does 


25,  Delaware.  Eq.  Eules  29,  29a. 
A  motion  ' '  for  a  decree  notwith- 
standing the  answer"  is  the  form 
of  motion  sometimes  used.  Clough 
V.  Cook,  87  Atl.  1017  (Del.  1913). 

Florida.     Eq.  Rules  85,  86. 

Maine.     R.  S.  Ch.  79,  Sec.  19. 

Maryland.  Hollander  v.  Central 
Metal,  etc.,  Co.,  109  Md.  131 
(1908);  Code,  Art.  16,  Sec.  161; 
Eq.  Rule  28. 

Massachusetts.    Eq.  Rule  16. 

New  Hampshire.  Hearing  to  be 
had  on  bill  and  answer  if  plaintiff 
fails  to  amend,  reply  or  except  after 
receiving  answer.     Eq.   Rule   93. 

New  Jersey.  Comp.  St.  ' '  Chan- 
cery" Sec.  25   (as  amended,  1913). 

Rhode  Island.  Considered  set 
for  hearing  on  bill  and  answer  if 
plaintiff  fails  to  except  or  reply  in 
ten  days.    G.  L.  Ch.  289,  Sec.  8. 

Tennessee.    Code,  Sec.  6242. 

Virginia.     Code,  See.  3291. 

West  Virginia.     Code,  Sec.  4804. 

26.  Delaware.  Curlett  v.  Em- 
mons, 85  Atl.  1079  (Del.  1913). 

Florida.  Godwin  v.  Phifer,  51 
Fla.  441   (1906). 

Illinois.  Goddard  v.  Chicago, 
etc.,  R.  Co.,  104  111.  App.  526,  aff. 
202  111.  362  (1902-3),  whether  re- 
sponsive or  not;  Kitchell  v.  Burg- 
win,    21    111.    40    (1858);    J.    &.    A. 


!I  909;  Hurd's  Stat.,  Ch.  22,  Sec.  29. 

Maine.  Bailey  v.  Worster,  103 
Me.  170  (1907),  statements  on  in- 
formation and  belief  are  not  taken 
as  true;  Dascomb  v.  Marston,  80 
Me.  223   (1888). 

Maryland.  Aetna  Indemnity  Co. 
v.  Baltimore,  etc.,  R.  Co.,  112  Md. 
389  (1910);  Fledderman  v.  Fled- 
derman,  112  Md.  226  (1910);  Bar- 
ton V.  International,  etc..  Alliance, 
85  Md.  14  (1897),  even  statements 
in  confession  and  avoidance  taken 
as  true;  Code,  Art.  16,  Sec.  160;  Eq. 
Rule  27. 

Massachusetts.  Perkins  v.  Nich- 
ols, 11  All.  542  (1865);  Copeland 
V.  Crane,  9  Pick.  (Mass.)  73  (1829), 
statements  of  inference  and  belief 
not  taken  as  true. 

Michigan.  Gates  v.  Grand 
Rapids,  134  Mich.  96  (1903);  Ruh- 
lig  V.  Wiegert,  49  Mich.  399 
(1882);  Eq.  Rule  10. 

Mississippi.  Russell  v.  Moffitt, 
6  How.  (Miss.)  303  (1842). 

New  Hampshire.  Rogers  v. 
Mitchell,  41  X.  H.  154  (1860). 

New  Jersey.  Neldon  v.  Roof,  55 
N.  J.  E.  608  (1897);  Comp.  St. 
"Chancery"  See.  31. 

Pennsylvania.  Mazet  v.  Pitts- 
burgh, 147  Pa.  548  (1890),  whether 
responsive  or   not. 


486 


EQUITY  PRACTICE 


not  elect  to  admit  the  tnitli  of  the  answer  in  this  way, 
his  proper  course  is  to  traverse  the  truth  of  the  answer 
by  replication,  a  i3roceeding  which  will  be  more  fully  con- 
sidered in  a  later  section. 

§  282.  Answer  as  evidence.  AVhen  a  cause  goes  to 
hearing,  after  bill,  answer  and  replication  filed,  it  is  a 
rule  in  general  chancery  practice,  when  the  answer  is 
under  oath,  that  such  parts  of  the  answer  as  are  respon- 


Tennessee.  Bowers  v.  McGav- 
ock,  114  Tenn.  438  (1905). 

Vermont.  Gates  v.  Adams,  24 
Yt.   70   (1851). 

Virginia.  Cocke  v.  Minor,  25 
Gratt.  246  (1S74). 

West  Virginia.  Brown  v.  Chick, 
65  W.  Va.  459    (1909). 

United  States.  Besson  &  Co.  v. 
Goodman,  147  Fed.  887  {C.  C.  1906). 

In  Alabama,  however,  the  an- 
swer when  under  oath  is  on  hear- 
ing on  bill  and  answer  taken  as 
true  only  as  to  its  denials  of  the 
bill,  its  correction  of  allegations  er- 
roneously made  by  the  bill,  and 
its  answers  to  interrogatories  in 
the  bill.  Code,  See.  3116;  Foxwith 
V.  White,  72  Ala.  224  (1882); 
Wynn  v.  Bosette,  66  Ala.  517 
(1880);  Frazer  v.  Lee,  42  Ala.  25 
(1868);  Keifer  v.  Barney,  31  Ala. 
192  (1857);  Fenno  v.  Sayre,  3  Ala. 
458  (1842).  The  answer  when  not 
under  oath  is  on  such  hearing 
taken  as  true  only  as  to  its  express 
admissions  and  express  denials. 
Code,  Sec.  3116;  Bostick  v.  Jacobs, 
141  Ala.  598  (1904);  Zelnicker  v. 
Brigham,  74  Ala.  598  (1883): 
Buchanan  v.  Buchanan,  72  Ala.  55 
(1882). 

In  Florida,  even  a  general  denial 
in  the  answer  is  taken  as  true  in 
hearing  on  bill  and  answer.  God- 
win V.  Phifer,  51  Fla.  441  (1906). 


Mississippi  has  no  replications; 
in  hearing  on  bill  and  answer, 
therefore,  the  answer  is  only  taken 
as  true  when  the  plaintiff  expressly 
sets  the  case  for  hearing  on  bill 
and  answer,  or  sets  the  case  for 
hearing  before  expiration  of  time 
for  taking  testimony.  Carman  v. 
Watson,  1  How.  (Miss.)  333 
(1836);  Code,  Sec.  603. 

On  a  submission  on  agreed  facts, 
the  answer  is  true  only  so  far  as 
supported  by  the  agreed  facts. 
Taunton  v.  Taylor,  116  Mass.  254 
(1874). 

Irregularities  and  informalities 
are  waived  by  setting  for  hearing 
on  bill  and  answer.  Besson  &  Co. 
V.  Goodman,  147  Fed.  887  (C.  C. 
1906).  In  the  case  just  cited,  one 
of  the  separate  defences  set  up  by 
the  answer  was  insufficient,  and, 
therefore,  instead  of  dismissing  the 
bill,  the  court  ordered  the  insuffi- 
cient portion  stricken  out  and  gave 
the  plaintiff  leave  to  file  replica 
tion. 

Upon  finding  for  the  plaintiff  on 
hearing  on  bill  and  answer,  decree 
in  accordance  with  the  allegations 
may  be  made  at  once  where  it  is 
evident  that  defendant  cannot  aid 
his  cause  by  amending  his  answer. 
Clough  v.  Cook,  87  Atl.  1017  (Del. 
1913). 


ANSWERS 


487 


sive  -'  to  the  bill  are  evidence  equal  to  the  testimony  of 
one  credible  witness,  and  are  therefore  to  be  taken  as 


27.  It  is  difficult  to  decide 
whether  or  not  an  answer  is 
strictly  responsive,  but  it  is  be- 
lieved that  no  more  definite  rule 
can  be  stated  than  that  in  Gil- 
more  V.  Patterson,  36  Me.  544 
(1843),  where  the  court  said: 
"So  far  as  the  defendant's  answer 
is  responsive  to  the  bill  or  neces- 
sarily connected  with  or  explan- 
atory of  the  responsive  matter  in 
the  bill,  it  is  evidence.  But  where 
a  new  and  independent  fact  not 
called  for  by  the  bill,  is  set  up, 
such  fact  must  be  established  by 
proof."  In  that  case  the  defend- 
ant was  charged  with  the  fraud- 
ulent possession  of  certain  notes 
belonging  to  plaintiff.  The  defend- 
ant answered  showing  how  the 
notes  had  come  into  his  hands  as 
collateral  security  and  further 
stated  the  amount  of  the  indebted- 
ness to  him  for  which  the  notes 
were  held  as  collateral.  Held  that 
the  part  showing  the  amount  of 
indebtedness  was  not  responsive 
and  must  be  proved.  So  where  a 
bill  alleges  a  certain  act  or  con- 
tract, the  answer  may  state  the 
whole  of  the  act  or  contract  and 
yet  be  responsive.  Merritt  v. 
Brown,  19  N.  J.  E.  286  (1868); 
Eaton's  Est.,  66  Pa.  483,  490 
(1870). 

But  the  mere  fact  that  an  aver- 
ment is  affirmative  and  not  neg- 
ative does  not  determine  whether 
it  is  new  matter  or  responsive. 
Davis  V.  Crockett,  88  Md.  249 
(1898).  For  example,  want  of 
consideration  is  usually  a  respon- 
sive defence,  for  it  essentially 
negatives  the  existence  of  a  consid- 


eration, which  is  part  of  the  plain- 
tiff's case;  but  illegality  or  failure 
of  consideration  is  an  unresponsive 
defence,  the  burden  of  establishing 
which  is  on  the  defendant.  Orman 
v.  Barnard,  5  Fla.  528   (1854). 

The  question  whether  an  allega- 
tion of  the  answer  is  responsive  to 
the  bill  or  is  unresponsive,  e.  g., 
affirmative,  and  therefore  of  no  ef- 
fect, is  frequently  raised  in  cases 
which  come  before  the  court  on 
pleadings  without  proofs,  i.  e.,  on 
bill,  answer  and  replication.  The 
following  are  examples  of  such 
cases: 

Florida.  Griffith  v.  Henderson, 
55  Fla.  618,  625  (1908);  Ropes  v. 
Jenerson,  45  Fla.  556,  110  Am.  St. 
R.  79  (1903);  Maxwell  v.  Jack- 
sonville, etc.,  Co.,  45  Fla.  425 
(1903),  taken  as  true  as  far  as  re- 
sponsive "as  well  when  it  dis- 
charges as  when  it  charges  the  de- 
fendant. ' ' 

Illinois.  Winkler  v.  Winkler,  40 
111.  183   (1866). 

New  Jersey.  Wilkinson  v.  Bau- 
erle,  41  X.  ,J.  E.  635  (1886); 
Voorhees  v.  Voorhees,  18  N.  J.  E. 
223   (1867). 

Pennsylvania.  Naglee  's  Estate, 
52  Pa.  154  (1866). 

West  Virginia.  Smith  v.  Patton, 
12  W.  Ya.  541   (1878). 

United  States.  Ritterbuseh  v. 
Atchison,  etc.,  R.  Co.,  198  Fed.  46 
(C.  C.  A.  1912);  People's,  etc., 
Bank  v.  Gilson,  161  Fed.  286,  aff.  140 
F.  1  (C.  C.  A.  1908);  Robinson  v. 
American  Car,  etc.,  Co.,  132  Fed.  165, 
aff.  135  Fed.  693,  68  C.  C.  A.  331 
(1904-5). 


488 


EQUITY  PRACTICE 


true  -'^  unless  outweighed  by  a  preponderance  of  evi- 
dence,-'' but  those  parts  of  an  answer  which  are  not 
responsive  but  set  up  matter  by  way  of  avoidance  are 
not  evidence,  and  the  burden  is  upon  the  defendant  to 
prove  them.-'" 


28.  Alabama.  Agnew  v.  Magill, 
96  Ala.  496  (1893);  Marshall  v. 
Croom,  52  Ala.  554   (1875). 

Florida.  Pinney  v.  Pinney,  46 
Fla.  559  (1903);  Day.  v.  Jones,  40 
Fla.  443   (1889). 

Illinois.  Merchants  Nat.  Bank 
\.  Lyon,  185  111.  343  (1899). 

Maine.  Appleton  v.  Horton,  25 
Me.  23   (1845). 

Maryland.  Rider  v.  Riely,  2  Md. 
Ch.  16   (1899),  22  Md.  540   (1865). 

New  Jersey.  Evans  v.  Evans,  59 
Atl.  564  (X.  J.  E.  1904). 

Pennsylvania.  Eeal  Estate,  etc., 
Co.  V.  Cook.  223  Pa.  158  (1909); 
Delaney  v.  Thompson,  187  Pa.  343 
(1S9S). 

Virginia.  Hudson  v.  Barham, 
101  Va.  63,  99  Am.  St.  R.  849 
(1903),  on  motion  to  dissolve  in- 
junction; Coldiron  t.  Asheville 
Shoe  Co.,  93  Va.  364  (1896) ;  Pow- 
ell V.  Manson,  22  Gratt.  177  (1872), 
effect  given  sworn  answer  as  evi- 
dence in  jury  trial. 

United  States.  Kennedy  v.  Cus- 
ter. 174  Fed.  972,  98  C.  C.  A.  584 
(1904);  Jacobs  v.  Van  Sickle,  127 
Fed.  62,  61  C.  C.  A.  598  (1903),  aff. 
123  Fed.  340. 

Positive  denials  and  other  state- 
ments of  fact  in  a  sworn  answer 
are  not  overcome  by  contradictions 
and  evasions  therein  or  by  show- 
ing that  the  defendant  is  unworthy 
of  credit,  such  criticisms  merely 
show  that  the  answer  is  not  true  in 
so  far  as  it  is  overcome  by  direct 
evidence  against  it.  Powell  v. 
:Manson.  22  Gratt.  (Va.)  177  (1872). 


An  answer  under  oath  is  bind- 
ing on  the  plaintiff  in  so  far  as 
it  makes  admissions.  Hageman  v. 
Brown,  76  X.  J.  E.  126   (1909). 

29.  Florida.  Davis  v.  Home,  57 
Fla.  396  (1909);  Ocala.  etc.,  Works 
V.  Lester,  49  Fla.  347  (1905). 

Illinois.  Fish  v.  Fish,  235  111. 
396  (1908);  Hutchinson  v.  Croar- 
kin,  187  111.  633,  rev.  87  111.  App. 
557    (1900). 

Pennsylvania.  Gabraith        v. 

Gabraith,  190  Pa.  225    (1899). 

Vermont.  Phelps  v.  Root,  78  Vt. 
493  (1906). 

Virginia.  Haynor  v.  Haynor,  70 
S.  E.  531  (Va.  1911);  Jones  v. 
Abraham.  75  Va.  466   (1881). 

United  States.  Bowden  v.  John- 
son, 107  U.  S.  251,  27  L.  ed.  386 
(1882) ;  Sharp  v.  Behr,  117  Fed.  864 
(C.  C.   1902). 

30.  Mayo  v.  Hughes;  51  Fla.  495 
(1906),  failure  of  additional  con- 
sideration set  up  in  answer  to  fore- 
closure bill;  Cary  v.  Herrin,  62  Me. 
16  (1873),  payments  set  up  in  an- 
swer to  redemption  bill;  Thompson 
v.  Fitzgerald,  233  Pa.  242  (1912); 
Pennsylvania  Co.  v.  Cole,  132  Fed. 
668  (C.  C.  1904). 

Although  only  those  parts  which 
are  responsive  can  be  used  as  evi- 
dence for  the  defendant,  yet  all  the 
admissions  of  an  answer  can  be 
used  as  evidence  against  him,  pro- 
vided that  the  admitted  facts  are 
put  in  issue  by  the  bill.  Attorney 
General  v.  Seward,  21  X'.  J.  E.  340 
(1871);  Hoff  V.  Burd,  17  N.  J.  E. 


ANSWERS 


489 


The  preponderance  of  evidence  required  by  the  rule  is 
a  preponderance  of  any  kind  of  legal  evidence,  such  as 
two  credible  witnesses,  or  one  witness  and  corroborat- 
ing circumstances,  or  even  circumstances  or  documents 
alone.^^  Any  evidence,  no  matter  what  it  may  be,  is  suffi- 
cient if  it  outweighs  the  answer,  and  in  determining  the 
weight  of  such  evidence  any  fact  may  be  taken  into  con- 
sideration which  has  a  bearing  upon  the  question,'^-    Thus 


201  (1864);  Pugh  v.  Mining  Co., 
112  U.  S.  238,  28  L.  ed.  684  (1884). 

31.  Eogero  v.  Eogero,  62  So.  899 
(Fla.  1913) ;  Salsbury  v.  Ware,  183 
111.  505,  rev.  80  111.  App.  485 
(1899);  Sherman  v.  Herr,  220  Pa. 
420  (1908);  Gantt  v.  Cox,  etc.,  Co., 
199  Pa.  208  (1901);  Bouden  v. 
Johnson,  107  U.  S.  251,  27  L.  ed. 
356  (1882);  Kirkpatrick  v.  Mc- 
Bride,  202  Fed.  144  (C.  C.  A.  1912). 

If  the  answer  of  a  corporation 
is  sworn  to  by  a  person  knowing 
the  facts,  the  answer  must  be  over- 
come like  any  other  sworn  answer; 
but  otherwise  the  answer  has  no 
force  as  evidence.  Carpenter  v. 
Insurance  Co.,  4  How.  185,  11  L.  ed. 
931  (1846);  Savings  etc.,  Soc.  v. 
Davidson,  97  Fed.  696,  38  C.  C.  A. 
365,  aff.  80  Fed.  54  (1899);  Coca 
Cola  Co.  V.  Gay,  etc.,  Co.,  200  Fed. 
720  (1912). 

In  Gould  V.  Williamson,  21  Me. 
273  (1842),  it  was  said:  "The 
evidence  may  in  this  as  in  other 
cases  be  by  way  of  inference  from 
circumstances  which  are  some- 
times more  convincing  than  direct 
testimony.  In  the  development  of 
fraud,  it  furnishes  almost  the  only 
source  to  be  relied  upon. "  So  it 
was  held  that  "where  a  person 
will  in  his  answer  under  oath  state 
that  to  be  a  fact  which  he  believes 
to  be  true  when  he  has  at  hand 
the  means  of  ascertaining  whether 


it  be  true  or  not,  it  is  a  circum- 
stance strongly  indicative  or  fraud 
if  it  be  not  true." 

32.  A  very  clear  and  sound  state- 
ment of  the  rule  is  laid  down  by 
the  Supreme  Court  of  Vermont  in 
Veile  V.  Blodgett,  49  Vt.  270,  277 
(1877),  as  follows: 

' '  The  general  rule  in  equity  upon 
this  subject,  as  has  often  been  de- 
clared, is  that  two  witnesses,  or 
evidence  equal  to  that  of  two  wit- 
nesses, is  required  to  overcome  the 
sworn  answer  of  the  defendant,  re- 
sponsive to  the  bill.  Other  author- 
ities say  the  rule  requires  one 
witness  with  corroborating  circum- 
stances. The  rule  has  its  basis  in 
the  fact  that  the  answer  is  called 
out  by  the  orator  for  his  own  use. 
If  it  admits  the  fact  charged  in  the 
bill  to  be  true,  the  orator  adopts 
this  admission  as  sufficient  proof 
of  the  fact.  If  the  answer  denies 
the  fact  charged  the  orator  is  left 
to  establish  it  by  other  means,  if 
he  can,  and  at  the  same  time  the 
denial  is  evidence  for  the  defend- 
ant. But  the  rule  as  often  an- 
nounced respecting  the  effect  of 
the  answer  as  proof  is,  we  think, 
misleading,  as  a  careful  examina- 
tion of  the  authorities  will  show. 
The  weight  of  evidence  does  not 
depend  upon  the  number  of  wit- 
nesses that  dejiose  to  given  facts. 
The  burden  of  proof,  when  an  an- 


490  EQUITY  PRACTICE 

an  answer  may  so  contradict  itself  as  to  deprive  it  of  all 


swer  is  responsive  to  the  bill,  de- 
volves upon  the  orator  to  satisfy 
the  court  that  such  answer  is  un- 
true; but  this  burden  may  some- 
times be  discharged  by  document- 
ary proof  or  circumstantial  evi- 
dence without  the  deposition  of 
any  witness  testifying  to  the  facts 
set  out  in  the  bill.  It  is  obvious 
that  a  sworn  answer  responsive  to 
the  bill  stands  as  the  deposition 
of  one  witness,  and  if  encountered 
by  only  one  witness  testifying  in 
contradiction,  and  no  circum- 
stances appear  affecting  the  case, 
no  preponderance  of  proof  is  made 
out  on  either  side,  and  the  orator 
must  fail  because  the  burden  of 
proof  is  upon  him.  But  the  answer 
considered  as  evidence  is  to  be 
weighed  precisely  as  it  would  be  if 
it  appeared  in  a  deposition  discon- 
nected from  the  defendant 's  plead- 
ing; and  the  fact  that  the  defend- 
ant is  interested  in  the  event  of 
the  suit  has  the  same  effect  in  dis- 
crediting his  story  that  it  does  in 
an  ordinary  case  at  law.  Again,  if 
the  answer  is  evasive  or  equivocat- 
ing it  lessens  its  force  as  evidence 
precisely  as  such  circumstances  im- 
pair the  story  of  a  witness  told 
on  the  witness  stand.  In  short,  the 
answer,  when  used  as  evidence,  is 
subject  to  the  same  proper  criti- 
cism and  the  same  legal  infirmities 
that  attach  to  all  evidence  in  what- 
soever form  it  is  introduced  in 
court.  All  that  the  orator  is  bound 
to  do  is  to  meet  and  overcome  the 
answer  by  competent  proof.  This 
proof  may  require  one  or  twenty 
witnesses;  it  may  be  made  without 
any. ' ' 

In     Street     on     Federal     Equity 
Practice,    Sees.    1611    ct    scq.    are 


some  illuminating  comments  on  the 
general  subject  discussed  in  the 
text  above.  "Continual  reiter- 
ation of  the  proposition  that  a  re- 
sponsive answer  cannot  be  over- 
come except  by  the  testimony  of 
two  witnesses  or  by  the  testimony 
of  one  witness  and  corroborating 
circumstances  naturally  tends  to 
engender  the  idea  that  there  is 
something  peculiarly  weighty 
about  the  answer  when  considered 
as  evidence.  But  according  to 
modern  notions,  this  is  a  mistake. 
By  asking  for  discovery,  the  plain- 
tiff uses  the  defendant  as  a  wit- 
ness and  thereby  accredits  him  to 
the  court.  The  plaintiff  would 
therefore  not  be  allowed  to  im- 
peach the  character  of  the  defend- 
ant for  truth  and  veracity,  as  he 
might  impeach  an  ordinary  wit- 
ness produced  by  his  adversary. 
But  subject  to  this  very  reason- 
able qualification,  the  sworn  an- 
swer is  to  be  treated  as  ordinary 
evidence.  .  .  .  The  practice  of 
the  English  chancery  is  largely 
based,  the  reader  may  be  reminded, 
on  the  procedure  of  the  English 
ecclesiastical  courts;  and  the  prac- 
tice of  these  courts  was  derived 
in  turn  from  the  system  of  canon 
law  and  from  the  civil  system  of 
law  prevailing  in  the  continental 
countries  of  Europe.  Xow  it  is  a 
historical  fact  that  these  systems 
of  law  recognized  the  following 
principle  in  regard  to  the  amount 
of  proof  necessary  to  establish  a 
fact  in  a  court  of  law,  namely,  that 
one  witness  alone  is  insufficient 
upon  any  material  point,  and  that 
consequently  at  least  two  witnesses 
are  necessary  to  make  out  a  case. 
.     .     .     The  English  court  of  chan- 


ANSWERS 


491 


weight.'^^  So  where  the  answer  contains  no  positive 
denial  of  a  material  allegation  of  the  bill,  it  is  not  evi- 
dence as  to  the  matter  contained  in  such  allegation.'^'* 
So  where  a  defendant  answers  only  upon  information  and 


eery  appears  to  have  followed  the 
ecclesiastical  rule  from  the  begin- 
ning, at  least  in  a  qualified  way, 
for  we  find  it  laid  down  in  the 
early  chancery  reports  that  two 
witnesses  are  necessary  to  make 
out  a  case  where  the  answer  denies 
the  allegations  of  the  bill.  .  .  . 
The  denial  of  the  defendant  seems 
to  have  been  taken  merely  as  mak- 
ing an  issue  and  was  thus  consid- 
ered sufiicient  to  put  the  plaintiff 
to  proof  by  the  testimony  of  two 
witnesses,  but  it  was  not  treated 
or  considered  as  being  evidence  for 
the  defendant.  ...  It  thus 
appears  that  the  rule  requiring 
two  witnesses  to  make  out  a  case 
against  the  denials  of  the  answer 
had  its  origin  in  the  arbitrary  rule 
which  prohibited  the  making  of  a 
decree  upon  the  testimony  of  a  sin- 
gle witness,  and  it  was  not  founded 
on  any  idea  that  the  defendant 's 
answer  is  to  be  treated  as  the  tes- 
timony of  a  credible  witness.  Yet 
the  transition  from  one  point  of 
view  to  the  other  was  quite  nat- 
ural; and  when  this  change  was 
accomplished,  it  became  customary 
to  speak  of  the  answer  as  being 
evidence  for  the  defendant  in  so 
far  as  it  is  responsive.  All  that 
was  necessary  to  this  end  was  that 
the  real  origin  of  the  rule  requiring 
two  witnesses  should  be  forgotten 
and  a  false  though  plausible  ex- 
planation should  be  given  for  its 
existence,  namely,  that  the  answer 
is  entitled  to  credit  equal  to  that 
of  the  testimony  of  a  single  wit- 
ness.    .     .     .     The  idea  of  consid- 


ering the  sworn  answer  to  be 
equivalent  to  the  testimony  of  a 
single  credible  witness  in  defend- 
ant 's  favor  was  accepted  by  the 
American  courts  of  equity  from  an 
early  day;  and  in  this  country  the 
doctrine  blossoms  out  into  the 
fully  developed  proposition  that 
the  defendant's  answer  is  evidence 
for  him  in  so  far  as  it  is  respon- 
sive to  the  allegations  of  the  bill. 
.  .  .  The  American  doctrine  .  .  . 
is  confusing;  for  when  it  is  once  ad- 
mitted that  the  denials  of  the  an- 
swer constitute  evidence  for  the 
defendant,  influences  are  set  afoot 
that  strongly  tend  to  the  further 
proposition  that  every  part  of  the 
answer  is  evidence  for  the  defend- 
ant which  responds  to  the  inter- 
rogatories or  is  within  the  scope 
of  the  discovery  sought.  In  other 
words,  it  is  hard  to  confine  the 
meaning  of  the  word  'responsive' 
in  this  connection  to  the  case  where 
the  answer  merely  denies  the  allega- 
tions of  the  bill." 

33.  Fish  v.  Fish,  235  111.  396,  85 
N.  E.  662  (1908),  defendant's  con- 
duct inconsistent  with  his  answer; 
Commercial  Bank  v.  Eeekless,  5  N. 
J.  E.  650  (1847);  Powell  v.  Man- 
son,  22  Gratt  (Va.)  177  (1872),  con- 
tradictions here  were  not  sufficient 
to  overcome  positive  statements  of 
fact. 

34.  Southern  Lumber  Co.  v.  Ver- 
dir,  51  Fla.  570  (1906);  Benson  v. 
Woolverton,  15  N.  J.  E.  158  (1862). 

But  a  general  denial,  though  in- 
suflieient  on  exceptions,  is  sufii- 
cient to  deny  the  essential  elementa 


492 


EQUITY  PKACTICE 


belief,  or  denies  all  knowledge  of  the  facts,  the  answer 
is  not  evidence.^^  So  a  denial  in  an  answer  is  of  no  avail 
when  the  contrary  is  conclusively  presumed  by  a  nile  of 
law,'^"  and  inferences  of  law  or  fact  drawn  by  a  defend- 
ant from  his  own  averments  are  solely  for  the  court.^^ 

It  is  a  general  nile,  however,  that  the  answer  of  one 
defendant  is  not  evidence  against  another  defendant.^^ 
But  it  seems  that  the  answer  of  one  partner  is  evidence 
against  a  copartner,^^  and  the  answer  of  one  defendant 
is  evidence  against  another  where  they  are  legally  or 
fraudulently  combined  so  as  to  create  a  unity  of  interest 
between  tliem.^" 


of  the  bill,  when  hearinjj  is  on  bill, 
answer  and  replication  without 
proofs.  Peoples,  etc.,  Bank  v.  Gil- 
son,  161  Fed.  286,  aff.  140  Fed.  1  (C. 
C.  A.  1908);  Robinson  v.  Am.  Car. 
etc.,  Co.,  132  Fed.  165,  aff.  13.5  Fed. 
693,  68  C.  C.  A.  331   (igOl-S). 

35.  Alabama.  Agnew  v.  Magill, 
96  Ala.  496  (1892);  Stallworth  v. 
Lassiter,  59  Ala.  558  (1877). 

Delaware.  Lattomus  v.  Gorman, 
3  Del.  Ch.  232  (1868). 

New  Jersey.  Corporation  for 
Belief,  etc.,  v.  Eden,  62  N.  J.  E. 
542  (1901);  Benson  v.  Woolverton, 
15  X.  J.  E.  158  (1862). 

Pennsylvania.  Gantt  v.  Cox, 
etc.,  Co.,  199  Pa.  208  (1901). 

Vermont.  Phelps  v.  Root,  78  Vt. 
493  (1906). 

United  States.  Samuel  Bros.  & 
Co.  V.  Hostetter  Co.,  118  Fed.  2.57,  55 
C.  C.  A.  Ill  (1902);  Hanchett  v. 
Blair,  100  Fed.  817,  41  C.  C.  A.  76 
(1900). 

36.  Smallwood  v.  Lewis,  15  N. 
J.  E.  60  (1862);  Northern  Pacific 
R.  Co.  V.  Boyd.  177  Fed.  804,  101  C. 
C.  A.  18,  aff.  170  Fed.  779  (1908-9)  ; 
Adams  v.  Adams,  21  Wall.  185,  25 
L.  ed.  504  (1874). 


37.  Matthaei  v.  Pownall,  84  Atl. 
444  (Pa.  1912);  Mazet  v.  Pitts- 
burgh, 137  Pa.  548   (1890). 

38.  Delaware.  Pleasanton  v. 
Rangerley,  3  Del.  Ch.   (1867). 

Florida.  Stackpole  v.  Hancock, 
40  Fla.  362,  45  L.  R.  A.  814  (1898). 

Illinois.  Rust  v.  Mansfield,  25 
111.  336   (1861), 

Maryland.  Reese  v.  Reese,  41 
M.l.  554  (1874). 

Mississippi.  Hanover  Nat.  Bank 
V.  Kloiu,  64  Miss.  141  (1886). 

Pennsylvania.  Eckman  v.  Eck- 
man,  55  Pa.  269   (1867). 

Tennessee.  Sawyer  v.  Sawyer, 
106  Tenn.  597   (1901). 

Vermont.  Porter  v.  Rutland 
Bank,  19  Vt.  410  (1847). 

Virginia.  Bolton  v.  Apperson, 
26  Gratt.  207   (1875). 

But  the  answer  of  one  defend- 
ant when  responsive  is  admissible 
in  behalf  of  a  co-defendant.  Mills 
V.  Gore,  20  Pick.  (Mass.)  28  (1838). 

39.  Gilmore  v.  Patterson,  36  Me. 
544  (1853);  Sawyer  v.  Sawyer,  106 
Tenn.  597   (1901). 

40.  Personneau  v.  PuUiara,  47 
111.  58  (1868);  Williams  v.  Hodg- 
son,  2   H.   &  J.    (Md.)   477,  3   Am. 


ANSWERS 


493 


All  the  rules  above  stated  in  regard  to  answers  as 
evidence  are  of  much  less  practical  importance  today 
than  formerly,  since  an  answer  is  not  evidence  unless 
under  oath,^^  and  in  some  states  not  even  when  under 
oath.^-  The  chief  object  of  requiring  an  answer  under 
oath  was  to  obtain  a  discover)^,  and  since  in  most  states 
this  object  has  become  unnecessary,  there  is  much  less 
occasion  than  formerly  for  requiring  an  answer  under 


Dec.  563  (1809);  Chapin  v.  Cole- 
man, 11  Pick.  (Mass.)  331  (1831); 
Sockman  v.  Miller,  22  So.  822 
(Miss.  1897) ;  Sawyer  v.  Sawyer, 
106  Tenn.  597  (1901). 

41.  Illinois.  Dowden  v.  Wilson, 
71  111.  485  (1874);  J.  &  A.  1(900; 
Kurd's  Stat.,  Ch.  22,  Sec.  20. 

Maine.    E.  S.  Cli.  79,  Sec.  17. 

Maryland.  Taggart  v.  Boldin, 
10  Md.  104  (1856);  Code,  Art.  16, 
Sec.   160;   Eq.  Rule  27. 

Micliigan.v  Morris  v.  Hoyt,  11 
Mich.  9  (1862);  How.  Ann.  St.  2d 
Ed.  §11,960;  C.  L.  Ch.  29,  Sec.  31 
(443). 

Mississippi.  National  Bank  v. 
Louisville,  etc.,  R.  Co.,  72  Miss. 
447   (1895). 

New  Hampshire.  Hall  v.  Cong- 
don,  55  N.  H.  105  (1874). 

New  Jersey.  Craft  v.  Schlag,  61 
N.  J.  E.  567   (1901). 

See  the  rules  and  statutes  cited 
in  note  44,  posi,  p.  494,  which  are 
authorities  a  fortiori  for  the  above 
point. 

In  Tennessee  as  against  a  sworn 
bill  a  sworn  answer  is  given  effect 
as  evidence  only  when  it  is  on 
knowledge,  and  the  bill  is  sworn 
to  on  belief.  Trabue  v.  Turner, 
10  Heisk.  447  (1872).  But  the  fact 
that  the  bill  was  of  a  sort  which 
does  not  ordinarily  require  a  sworn 
answer  is  immaterial,  if  as  a  fact 
Buch  answer  was  not  waived  and 


was  filed.  Pearce  v.  Suggs,  85 
Teun.  724   (1887). 

An  answer  is  not  evidence  in  a 
criminal  prosecution.  See  the  Ver- 
mont P.  S.,  Sec.  1252. 

42.  Alabama.  Where  the  plain- 
tiff swears  to  his  bill,  a  sworn  an- 
swer is  to  have  only  such  weight 
as  answers  to  interrogatories  have, 
and  the  rule  regarding  the  usual 
effect  of  a  sworn  answer  is  inap- 
plicable.    Code,  Sec.  3117. 

Maryland.  Not  evidence  against 
the  plaintiff  unless  read  at  the 
hearing  by  the  plaintiff  as  evi- 
dence against  the  defendant;  al- 
though the  answer  may  be  used  as 
an  affidavit  at  the  hearing  to  dis- 
solve injunction  or  discharge  re- 
ceiver. Code,  Art.  16,  Sec.  159. 
This  section,  however,  may  by  its 
terms  only  apply  to  cases  where 
sworn  answers  are  filed  although 
not  required  by  the  plaintiff. 

Michigan.  Neither  bill  nor  an- 
swer are  evidence  except  as  to  ad- 
missions and  at  a  hearing  on  mo- 
tions.    Eq.  Rule  10. 

Mississippi  (Same  as  in  Ala- 
bama). Purvis  V.  Woodard,  78  Miss. 
922  (1901);  Shackleford  v.  Brown, 
72  Miss.  380  (1894);  Code,  Sec. 
587. 

West  Virginia.  See  Glade  Coal 
Co.  V.  Harris,  65  W.  Va.  152  (1909) ; 
Knight  V.  Bease,  53  W.  Va.  50 
(1903);  Code,  Sec.  4813. 


494 


EQUITY  PRACTICE 


oath.^^  Furthermore,  it  is  almost  universally  law  that 
if  an  answer  under  oath  is  waived,  by  the  bill,  the  defend- 
ant cannot  make   his  answer   evidence  by  voluntarily 


answering  under  oath.^^ 


43.  It  follows  from  the  principle 
stated  iu  the  text  that  the  oath 
cannot  be  waived  to  the  answer  to 
a  pure  bill  of  discovery. 

Alabama.     Code,  Sec.  3096. 

Illinois.  J.  &  A.  11900;  Hurd's 
►Stat.,  Ch.  22,  Sec.  20, 

Massachusetts.  Badger  v.  Mc- 
Namara,  12;5  Mass.  117,  120  (1877); 
Ward  v.  Peck,  114  Mass.  121 
(1873). 

Michigan.  C.  L.,  Ch.  29,  Sec.  31 
(443). 

Rhode  Island.  Starkweather  v. 
Williams,  21  E.  I.  55  (1898);  Cong- 
don  v.  Aylesworth,  16  R.  I.  281 
(1889). 

United  States.  Victor  G.  Bloede 
Co.  V.  Carter,  148  Fed.  127  (C  C. 
1906);  Uhlman  v.  Arnholt,  etc., 
Co.,  41  Fed.  369  (C.  C.  1890),  bill  for 
relief  and  discovery. 

But  see  Manley  v.  Mickle,  55 
N.  J.  E.  563  (1897),  bill  for  re- 
lief and  discovery. 

44.  Alabama.  Code,  Sees.  3119, 
3096. 

Florida.  Kahn  v.  Weinlander, 
39  Fla.  210  (1897). 

Illinois.  Bickerdike  v.  Allen,  157 
111.  95,  29  L.  E.  A.  782  (1895); 
Jefferson  v.  Kennard,  77  111.  246 
(1875);  J.  &  A.  11900;  Hurd's  Stat., 
Ch.  22,  Sec.  20. 

Maine.  Clay  v.  Towle,  78  Me. 
86  (1886);  E.  S.,  Ch.  79,  Sec.  17. 

Maryland.  Not  evidence  except 
as  an  affidavit  in  hearings  on  in- 
junctions and  receivers.  Code, 
Art.  16,  Sees.  159,  160;  Equity  Rule 
27. 


Massachusetts.  Gerrish         v. 

Towuo,  3   Gray  82   (1854). 

Michigan.  Newlover  v.  Calla- 
ghau,  86  Mich.  301    (1891). 

Mississippi.  Delta,  etc.,  Co.  v. 
Adams,  93  Aliss.  340   (1909). 

New  Hampshire.  Ayer  v.  Mes- 
ser,  59  N.  H.  279   (1879). 

New  Jersey.  Not  evidence  ex- 
cept on  motions  respecting  injunc- 
tions and  as  to  sworn  answers  to 
interrogatories.  Comp.  St.,  "Chan- 
cery," Sec.   19. 

Rhode  Island.  G.  L.,  Ch.  289, 
Sec.    15. 

Tennessee.     Code,  Sec.  6125. 

Vermont.  Equity  Eule  24.  But 
the  answer  may  be  used  as  an  affi- 
davit  in    incidental    hearings.    Ibid. 

Virginia,  Not  evidence  except 
as  an  affidavit  in  incidental  hear- 
ings, and  as  to  sworn  answers  to 
interrogatories.  Code,  Sec.  3281. 
Compare  Jones  v.  Abraham,  75  Va. 
466  (1881). 

West  Virginia.     Code,  Sec.  4792. 

United  States.  Contra,  Wood- 
ruff V.  Dubuque,  etc.,  E.  Co.,  30  Fed. 
91    (C.   C.   1887). 

In  some  states  the  answer  need 
not  be  sworn  to  unless  the  plain- 
tiff so  requests.  See  note  54,  ante, 
p.  464.  Usually,  however,  sworn  an- 
swer must  be  furnished  unless 
waived.     See  note  53,  ante,  p.  463, 

In  Delaware  the  defendant  need 
not  answer  any  allegation  unless 
interrogated  thereto,  but  if  inter- 
rogated as  to  part  of  the  charge 
in  the  bill,   he  may  answer  as  to 


ANSWERS  495 

An  amended  bill  cannot  deprive  the  defendant  of  the 
benefit  of  a  sworn  answer  to  the  original  bill.^'' 

all,    and    his    answer    will   be    evi-  Throckmorton,   86  Va.   768    (1890). 

dence.     Eq.  Eule  93.  Conversely,     an     oath     cannot     be 

45.  Jefferson  v.  Kennard,  77  111.  waived  as  to  the  original  bill  and 

246    (1875);    Wylder    v.    Crane,    53  required  as  to  an  amendment.     Mc- 

111.    490    (1870);    Throckmorton    v.  Caw  v.  Barker,  115  Ala.  543  (1896). 


CHAPTER  XIV 
DISCLAIMERS 

§  283.  General  nature  of  a  disclaimer.  A  dieclaimer  is 
a  denial  by  the  defendant  that  he  has  or  claims  any  right 
to  the  subject  of  the  demand  made  by  the  plaintiff's 
bill,  and  a  renunciation  of  all  claim  thereto.^  Though  a 
disclaimer  is  in  substance  distinct  from  an  answer,  yet  in 
point  of  form  it  resembles  an  answer,  containing  simply 
an  assertion  that  the  defendant  disclaims  all  right  and 
title  to  the  matter  in  demand.^  A  defendant  may  demur 
to  one  part  of  a  bill,  plead  to  another,  answer  to  a  third, 
and  disclaim  to  a  fourth,  provided  each  part  is  distinct.^ 

§  284.  Disclaimer  accompanied  by  answer.  A  dis- 
claimer can  seldom  be  put  in  alone;  for  although  the 


1.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
706;  Story's  Eq.  PI.  (10th  ed.), 
Sec.  838. 

A  disclaimer  must  be  unequiv- 
ocal. Thus  a  disclaimer  merely  as 
to  the  interest  of  the  defendant  in 
a  representative  capacity  is  insuffi- 
cient, even  thouj^h  that  is  the  only 
capacity  in  which  the  bill  alleges 
that  he  has  an  interest.  Bentley 
V.  Cowman,  6  G.  &  J.  (Md.)  152 
(1834). 

A  disclaimer  is  only  proper  when 
the  defendant's  interest  is  such 
that  as  to  him  the  bill  is  inadmis- 
sible. Thus  a  disclaimer  was  re- 
moved from  the  files  on  motion, 
where  on  the  undisputed  facts  it 
appeared  that  the  defendant  held 
a  legal  title,  of  which  it  was  the 
object  of  the  bill  to  obtain  a  con- 


veyance. Isham  v.  Miller,  44  N.  J. 
E.  61   (1888). 

A  disclaimer  may  relate  back  to 
a  time  prior  to  its  date  of  filing; 
thus  the  disclaimer  of  a  trustee  was 
related  back  to  the  time  of  his 
appointment  in  Hughes  v.  Brown, 
88  Tenn.  578  (1889). 

A  person  not  a  party  to  the  bill 
may  appear  and  disclaim.  Marsh 
V.  Green,  79  111.  385   (1875). 

2.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
707. 

It  has  been  held  in  England  that 
a  disclaimer  may  be  included  with- 
in the  meaning  of  the  word  "an- 
swer" in  an  order  of  court.  Anon., 
3  L.  J.  Ch.  94. 

3.  Story's  Eq.  PI.  (10th  ed.),Sec. 
839. 


496 


DISCLAIMERS  497 

defendant  may  have  been  made  a  party  by  mistake,  never 
having  had  any  interest  in  the  matter  in  question,  yet 
he  may  have  had  an  interest  which  he  afterwards  parted 
with,  and  the  plaintiff  may  require  an  answer  sufficient 
first  to  ascertain  whether  that  is  the  fact  or  not,  and 
secondly,  if  such  is  the  fact,  to  enable  the  plaintiff  to  join 
the  proper  party  in  the  place  of  the  defendant  disclaim- 
ing.'* So  a  defendant  cannot  by  disclaiming  title  or  inter- 
est in  the  subject  of  the  suit  avoid  answering  as  to  his 
liability,  if  under  all  the  circumstances  an  answer  may 
still  properly  be  required  of  him,^  for  although  he  may 
have  no  interest,  others  may  have  an  interest  against 
him.  So  it  has  been  held  that  a  party  to  an  account  can- 
not, by  disclaiming  interest  in  the  account,  protect  him- 
self from  setting  out  the  account  '^  and  if  fraud  is  charged 
against  the  defendant,  a  disclaimer  alone  is  not  sufficient, 
but  an  answer  must  be  given  to  the  imputed  fraud.'^  If 
a  disclaimer  and  an  answer  are  inconsistent,  the  matter 
will  be  taken  most  strongly  against  the  defendant  upon 
the  disclaimer.^ 

§  285.  Disclaimer  by  one  of  several  defendants.    A  dis- 
claimer by   one   of   several   defendants   cannot  in   any 

4.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  Euss.  458,  462;  De  Beauvoir  v. 
706,  citing:  Ld.  Eed.  418;  Oxenham  Ehodes,  cited  3  M.  &  C.  643;  Do- 
V.  Esdaile,  McL.  &  Y.  540;  Walters  bree  v.  Nicholson,  22  L.  T.  (N.  S.) 
V.    Northern,    etc.,    Co.,    1    W.    E.  775. 

383;  Ellsworth  v.  Curtis,  10  Paige  7.  Bulkeley   v.    Dunbar,    1    Anst. 

(N.  Y.)   105   (1843).  37. 

5.  Story's  Eq.  PI.  (10th  ed.),  Sec.  S.Story's    Eq.    PI.     (10th    ed.), 
838a;  Dan.  Ch.  Pr.   (6th  Am.  ed.),  Sec.   839;    Dan.    Ch.   Pr.    (6th   Am. 
707;    Bromberg  v.   Heyer,   69   Ala.  ed.),  709,  citing  Ld.  Eed.  320;  Lee 
22      (1881);     Wallace     v.     County  v.  Slatterly,  7  Baxt.  (Tenn.)  235. 
Court,  3  Shan.  Cas.  (Tenn.)  556.               In  Kennedy  v.  Kennedy,  66  111. 

But  if  it  is  evident  that  the  de-  190    (1872),   a   cross   bill   was    dis- 

fendant  should  not,  after  the  dis-  missed  on  demurrer  plus  disclaim- 

claimer,   be    continued    a   party   to  er;   but  in   Worthington  v.  Lee,   2 

the  suit,  he  need  not  answer.   Ells-  Bland  (Md.)  678  (1830),  and  Proc- 

worth  V.  Curtis,  10  Paige   (N.  Y.)  tor  v.  Plumer,  112  Mich.  393  (1897), 

105  (1843).  it  was  held  that  a  disclaimer  should 

6.  Glassington     v.     Thwaites,     2  not  be  contained  in  a  demurrer. 

Whitehouse  E.  P.  Vol.  1—32 


498  EQUITY  PRACTICE 

ease  be  permitted  to  prejudice  the  plaintiff's  right 
as  against  other  defendants.'^  Where  a  bill  is  filed  against 
two  or  more  defendants  and  one  disclaims  all  right  and 
title  to  tlie  subject  in  litigation,  then  at  the  hearing  the 
bill  is  simply  dismissed  as  against  the  disclaiming  defend- 
ant and  the  court  only  determines  the  rights  and  interest 
of  tlie  remaining  parties.^" 

§  286.  Disclaimer  by  mistake.  AVhere  a  defendant  puts 
in  a  disclaimer  and  afterwards  discovers  that  he  had  an 
interest  which  he  was  not  aware  of  at  the  time  he  dis- 
claimed, the  court  will  upon  the  ground  of  ignorance  or 
mistake,  peiTuit  him  to  make  his  claim.  It  will  not  how- 
ever allow  a  defendant  to  do  so  at  the  hearing.  He  must 
in  order  to  get  rid  of  the  effect  of  his  disclaimer,  make 
a  distinct  application  supported  by  affidavit,  setting  forth 
the  facts  in  detail  on  which  he  founds  his  claim-  to  such 
indulgence,^  ^  and  he  must  make  out  a  strong  case,  before 
the  court  will  grant  the  application.^ - 

§  287.  Disclaimer  at  hearing.  Where  a  defendant  does 
not  disclaim  on  the  record,  he  may  do  so  by  his  counsel 
at  the  hearing,  in  which  case  the  fact  should  be  noticed 
in  the  decree.  Upon  such  a  disclaimer  he  may  be  dis- 
missed, but  without  costs.^^ 

9.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  had  been  waived,  no  discovery  had 
707,  citing  Williams  v.  Jones,  been  asked  of  this  defendant,  and 
Younge  252,  255.  So  in  Kane  Co.  v.  no  objection  to  dismissing  him  had 
Harrington,  50  111.  232  (1869),  dis-  been  taken  below. 

claimer  by  certain  defendant  heirs  11.  Sidden  v.  Lediard,  1  R.  &  M. 

did   not  vest  their  title  in  the  re-  110. 

maining    heirs,    who    were    parties  12.  Seton    v.   Slade,   7   Ves.    265, 

plaintiff,  as  against  other   defend-  267. 

ants.  13.  Circumstances  may  render  it 

10.  In  Sawyer  v.  Campbell,  130  expedient  to  retain  him  on  the  rec- 
111.  186  (1889),  the  disclaiming  ord,  as  for  instance  if  he  has  doeu- 
defendant  was  dismissed  before  ments  in  his  possession  relating  to 
hearing;  the  upper  court  said  it  the  suit  which  ought  to  be  deliv- 
is  the  better  practice  to  let  such  a  ered  up,  in  which  case  the  master 
defendant  stand  as  a  party  till  the  will  be  directed  to  make  inquiry, 
hearing,  but  here  aflSrmed  the  de-  Teed  v.  Corruthers,  2  Y.  &  Coll.  Ch. 
cree    because    answer    under    oath  31,  40,  41.    In  proceedings  by  peti- 


DISCLAIMERS  499 

§288.  Form  of  disclaimer.  Disclaimers  should  be 
entitled  in  the  cause  iu  the  usual  way,  and  further  de- 
scribed as  "The  disclaimer  of  A.  B.  to  the  bill  of  com- 
plaint of  CD."  and  should  begin  and  end  with  the  formal 
words  which  usually  precede  and  end  an  answer,  but 
the  disclaiming  part  simjDly  denies  that  the  defendant 
ever  had  or  now  has  any  title  or  interest  or  claim  of 
interest  in  the  subject  of  the  suit,  and  renounces  any 
such  interest  or  claim. 

Since  a  disclaimer  is  designed  to  operate  as  a  release, 
it  must  be  signed  by  the  defendant  himself  and  his  sig- 
nature attested  by  some  person  competent  to  be  a  wit- 
ness.^* Furthermore,  since  a  disclaimer  resembles  an 
answer,  it  should  therefore  be  verified  by  oath  when  the 
defendant  is  required  to  answer  under  oath,  but  not 
otherwise.^^ 

§  289.  Removing-  disclaimer  from  the  file — Exceptions. 
When  a  simple  disclaimer  is  filed,  if  the  plaintiff  is 
entitled  to  an  answer,  his  proper  course  is  to  move  to 
have  the  disclaimer  taken  from  the  files,  and  not  to  except 
to  the  disclaimer.^*^  But  where  a  disclaimer  is  accom- 
panied by  an  insufficient  answer,  the  proper  course  ap- 
pears to  be  to  except  to  the  answer  on  the  ground  of 
insufficiency.^'^ 

§290.  Replication  not  required  to  disclaimer.  When 
a  defendant  puts  in  a  simple  disclaimer  to  the  whole  bill, 
no  replication  is  necessary  in  order  to  bring  the  cause  to 
a  hearing.^^     But  it  is  otherwise  where  there  is  a  dis- 

tion   under   a   statute   for   the   ap-  15.  Dickerson   v.   Hodges,  43  N. 

pointment  of  a  new  trustee,  there       J-  E.  45  (1887). 
is  s»me  doubt  whether  a  disclaimer  16.  Isham  v.  Miller,  44  N.  J.  E. 

at  the  bar  by  the  original  trustee  ^1  (1888);  Ellsworth  v.  Curtis,  10 
will  divest  the  estate.  In  re  Elli-  Paige  (N.  Y.)  105  (1843).  But  see 
son's  Trust,  2  Jur.  N.  S.  62.  But  Glassington  v.  Thwaites,  2  Russ. 
'  458,  463. 

17.  Ellsworth  v.  Curtis,  10  Paige 
(N.  Y.)   105   (1843). 
14.  Dickerson  v.   Hodges,  43  N.  i8.  SpofPord  v.  Manning,  2  Edw. 

J.  E.  45  (1887).  Ch.  (N.  Y.)  358,  360  (1835). 


see  Foster  v.  Dawber,   1   Drew  & 
Sm.  172. 


500 


EQUITY  PRACTICE 


claimer  as  to  part  of  the  ])ill  and  a  plea  or  answer  to 
otlier  parts.'-' 

§  291.  Effect  of  disclaimer.  The  effect  of  a  disclaimer 
when  properly  interposed  and  sustained,  is  to  dismiss 
the  bill  as  to  the  defendant  disclaiming,  usually  with 
costs  in  his  favor,-"  or  to  require  the  plaintiff  to  amend;  ^^ 
but  where  there  was  probable  cause  for  making  him  a 
party,  the  plaintiff  may  not  only  be  excused  from  paying 
him  costs,  but  he  may  pray  a  decree  against  the  defend- 
ant and  all  claiming  under  him,  since  the  time  of  filing 
the  bill,  and  this  is  usually  granted  without  costs  on 
either  side.^- 


19.  Williams  v.  Longfellow,  3 
Atk.  382. 

20.  Finch  v.  Martin,  19  111.  105 
(1857),  scmblc;  Spofford  v.  Man- 
ning, 2  Edw.  Ch.  (N.  Y.)  358 
(1835).  In  Alabama,  a  disclaimer 
under  oath  to  a  statutory  suit  to 
quiet  title  in  which  disclaimer  the 
defendant  denies  ever  having  mado 
a  claim,  is  sufficient  to  entitle  the 
defendant  to  costs.  Code,  Sec. 
5448.  As  to  costs  on  disclaimers  in 
English  chancery  practice,  seo 
Dan.  Ch.  Pr.  (6th  Am.  ed.),  709, 
710. 

21.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  709. 

Or  if  the  plaintiff  thinks  the  de- 
fendant is  not  entitled  to  his  costs, 
he  may  set  the  cause  down  upon 
the  answer  and  disclaimer,  and 
bring  the  defendant  to  the  hearing. 
Cash  V.  Belcher,  1  Hare  313. 

22.  Meade  v.  Finley,  47  111.  400 
(1868),  disclaimer  of  the  right  of 
homestead  which  plaintiff  alleged 
existed  as  a  flaw  in  plaintiff's  title 
acquired  at  judicial  sale;  Spofford 
V.  Manning,  2  Edw.  Ch.  (N.  Y.) 
358   (1835). 

The  following  are  the  rules  laid 


down  by  Sir  John  Romilly  in  Ford 
V.  Chesterfield,  16  Beav.  520: 

"First,  in  a  suit  for  foreclosure 
or  redemption  of  mortgages  where 
a  defendant  disclaims  in  such  a 
manner  as  to  show  that  he  never 
had  and  never  claimed  an  interest 
at  or  after  the  filing  of  the  bill, 
then  he  is  entitled  to  his  costs; 
secondly,  if  a  defendant  having  an 
interest  shows  that  he  disclaimed 
or  offered  to  disclaim  before  the 
institution  of  the  suit,  there  also 
he  is  entitled  to  his  costs;  thirdly, 
where  a  defendant  having  an  inter- 
est allows  himself  to  be  made  a 
party  to  the  suit  and  does  not  dis- 
claim or  offer  to  disclaim  until  he 
puts  in  his  answer  or  disclaimer, 
in  that  case  he  is  not  entitled  to 
his  costs." 

In  Bigelow  v.  Stringfellow,  25 
Fla.  366  (1889),  there  was  no  dis- 
claimer, but  the  bill  was  dismissed 
as  to  a  defendant  whom  the  court 
found  to  have  parted  with  his  in- 
terest before  being  made  a  party; 
but  because  he  had  himself  led  the 
plaintiff  to  name  him  as  a  party, 
he  was  obliged  to  pay  costs. 

A  disclaimer  operates  as  an  es- 


DISCLAIMERS  501 

Costs  are  generally  awarded  the  plaintiff,  where  tlie 
disclaimer  is  overruled.^^ 

toppel  and  is  an  absolute  bar  as  be-  specification  of  defence  to  writ  of 

tween   parties   and   privies   to   fur-  entry. 

ther  assertion  of  the   right.     Tap-  23.  Carrington  v.  Lentz,  40  Fed. 

pan   V.   Boston   Water   Power    Co.,  IS  (C.  C.  1889). 

157  Mass.  24  (1892),  disclaimer  as 


CHAPTER  XV 


EQUITABLE  DEFENCES 


§  292.  Equitable  defences  in  actions  at  law.  In  sev- 
eral of  tlie  jurisdictions  where  equity  and  law  are  in  most 
respects  separately  administered,  the  use  of  equitable 
defences  in  actions  at  common  law  is  permitted,  usually 
by  reason  of  special  statutory  provisions.^    The  object  of 


1.  Florida  (General  Statutes, 
1906).  (1438)  Dcfemlant's  equita- 
ble pleadings.  The  defendant  in 
any  cause  in  any  of  the  courts  of 
this  state  in  which,  if  judgment 
"were  obtained,  he  would  be  entitled 
to  relief  against  such  judgment  on 
equitable  grounds,  may  plead  by 
plea  of  subsequent  pleading  the 
facts  which  entitle  him  to  such  re- 
lief by  way  of  defence.  Such  plea 
shall  begin  with  the  words:  "For 
defence  on  equitable  grounds,"  or 
words  to  the  like  effect.  Any  such 
matter  which,  if  it  arose  before  or 
during  the  time  or  pleading,  would 
be  an  answer  to  the  action  by  way 
of  plea,  may,  if  it  arises  after  the 
lapse  of  the  period  during  which  it 
could  be  pleaded,  be  set  up  by  way 
of  audita  querela. 

(1439)  Plaintiff's  equitable 
pleadings.  The  plaintiff  may  reply, 
rejoin,  etc.,  in  answer  to  any  plea, 
etc.,  of  the  defendant,  facts  which 
would  avoid  such  plea,  etc.,  upon 
equitable  grounds.  Such  replica- 
tion, etc.,  shall  begin  with  the 
words:  "For  replication  on  equita- 
ble grounds,"  or  to  the  like  effect. 

(1440)  Striking    out    equitable 


pleadings.  If  it  shall  appear  to  the 
court  that  any  such  equitable  plead- 
ing cannot  be  dealt  with  by  a  court 
of  law,  so  as  to  do  justice  between 
the  parties,  such  court  may  order 
the  same  to  be  struck  out  on  such 
terms  as  to  costs  and  otherwise  as 
to  it  may  seem  reasonable. 

Maine  (Eevised  Statutes,  1903, 
Ch.  84).  Sec.  17.  Any  defendant 
may  plead  in  defence  to  any  action 
at  law  in  the  supreme  judicial 
court,  any  matter  which  would  be 
ground  for  relief  in  equity,  and 
shall  receive  such  relief  as  he  would 
be  entitled  to  receive  in  equity, 
against  the  claims  of  the  plaintiff; 
such  matter  of  defense  shall  be 
pleaded  in  the  form  of  a  brief 
statement  under  the  general  issue. 
And,  by  counter  brief  statement, 
any  plaintiff  may  plead  any  matter 
which  would  be  ground  for  relief 
in  equity  against  any  defense  set 
up  by  any  defendant  in  an  action 
at  law  in  said  court,  and  shall  re- 
ceive such  relief  as  he  would  be 
entitled  to  receive  in  equity  against 
such  claim  of  the  defendant. 

Sec.  18.  In  actions  at  law  in 
the   superior  courts,   equitable   de- 


502 


EQUITABLE  DEFENCES 


503 


fenses  and  equitable  replies  to  mat- 
ters of  defense,  may  be  pleaded  by 
filing  a  brief  statement  thereof  sup- 
ported by  affidavit  that  the  mat- 
ters so  pleaded  are  true  in  fact. 
Thereupon  the  action  shall  be 
transferred  to  the  docket  of  the  su- 
preme judicial  court  for  the  same 
county,  and  be  heard  and  deter- 
mined in  that  court. 

See.  19.  Whenever  in  such  ac- 
tion any  matter  which  would  be 
ground  for  relief  in  equity  is  so 
pleaded  by  any  party,  the  supreme 
judicial  court  may  make  such  de- 
crees and  restraining  orders,  as  may 
be  necessary  to  protect  and  pre- 
serve such  equitable  rights,  and 
may  issue  injunctions,  according 
to  the  usual  practice  of  courts  of 
equity. 

Maryland  (Code  of  1904,  Art. 
75).  Sec.  86.  It  shall  be  lawful 
for  the  defendant  in  any  action 
at  law  (including  plaintiff  in  re- 
plevin where  avowry  or  cogniz- 
ance is  made)  in  which,  if  judg- 
ment were  obtained  he  would  be 
entitled  to  relief  against  said  judg- 
ment on  equitable  grounds,  to 
plead  the  facts  which  entitle  him 
to  such  relief  by  way  of  defense, 
and  the  court  in  which  such  action 
is  pending  is  hereby  empowered  to 
receive  such  defense  by  way  of 
plea;  provided,  that  such  plea  shall 
begin  with  the  words,  "for  defense 
on  equitable  grounds,"  or  words  to 
that  effect. 

Massachusetts  (Eev.  Laws,  1902, 
Ch.  173).  Sec.  28  (as  amended, 
1913,  Ch.  307).  The  defendant  may 
allege  in  defense  any  facts  that 
would  entitle  him  in  equity  to  be 
absolutely  and  unconditionally  re- 
lieved against  the  plaintiff's  claim 
or  cause  of  action  or  against  a 
judgment   recovered   by  the   plain- 


tiff in  such  action;  and  such  de- 
fence shall  be  available  in  any 
court  where  said  action  is  pending. 

Sec.  32.  The  plaintiff  may,  in 
reply  to  a  defence  alleged  by  the 
defendant,  allege  any  facts  which 
would  in  equity  avoid  such  de- 
fence or  which  would  entitle  the 
plaintiff  to  be  absolutely  and  un- 
conditionally relieved  in  equity 
against  such  defence. 

(By  Sec.  124,  both  the  above  sec- 
tions apply  to  real  and  mixed  ac- 
tions as  well  as  to  other  actions  at 
common  law.) 

New  Hampshire  (Public  Stat- 
utes, Ch.  223).  Sec.  3.  No  special 
plea  shall  be  required  in  a  civil 
action,  except  a  plea  of  title  to 
real  estate  in  actions  in  police  and 
justice  courts;  but  any  defence  may 
be  proved  under  the  general  issue, 
upon  a  brief  statement  thereof  be- 
ing filed  in  such  time  as  the  court 
may  order. 

Sec.  4.  When  the  defendant 
pleads  one  or  more  special  pleas, 
the  plaintiff  may  reply  thereto  all 
such  matters  as  may  be  material 
in  answer  to  or  avoidance  of  the 
matters  alleged  therein,  and  for 
that  purpose  may  file  as  many  sep- 
arate replications  as  the  case  re- 
quires. 

(Although  the  court  refused,  in 
Winn.  Paper  Co.  v.  Eaton,  64  N.  H. 
234  (1886),  to  permit  the  defend- 
ant in  a  suit  on  the  covenants  in 
a  deed  to  have  the  deed  reformed 
by  a  brief  statement  in  his  answer, 
and  although  there  is  no  statute 
expressly  permitting  equitable  de- 
fences, the  statutory  provision 
in  regard  to  pleading  the  gen- 
eral issue  has  been  interpreted 
to  permit  the  defendant  under  his 
plea  at  common  law  to  move  the 
court    for    leave    to    file    a    bill   in 


504 


EQUITY  PRACTICE 


this  practice  is  to  save  circuity  of  action.-  Of  the  remain- 
ing jurisdictions,  a  few  have  a  more  limited  use  of  equi- 
table defences:^  in  the  rest  the  distinction  between  pro- 


equitv  setting  forth  his  equitable 
case.  Boody  v.  Watson,  64  X.  H. 
162  (18S6>:  Brooks  v.  Howison,  63 
X.  H.  3S2  (1SS5);  Metcalf  v.  Gil- 
more,  59  X.  H.  417  (1879);  com- 
pare Xoyes  V.  Edgerly,  71  X.  BL  500 
(1902-.) 

Pennsylvania,  In  Pennsylvania, 
although  there  is  no  statute,  from 
the  earliest  time  it  has  been  the 
uniform  practice,  sustained  at  all 
times  by  the  courts,  to  allow  in 
any  common  law  action  the  filing 
of  special  pleas  or  of  equitable 
pleas  setting  np  defences  cogniz- 
able in  equity  but  not  strictly  in 
common  law.  Although  special 
plea'iiug  has  now  been  abolished, 
the  same  result  is  now  obtained  by 
filing  the  general  issue  and  giving 
notice  thereunder  at  least  fifteen 
days  before  the  day  set  for  filing 
of  any  equitable  defence  which  the 
defendant  desires  to  set  up  at  the 
trial. 

Rhode  Island  (Gen.  Laws,  1904, 
Ch.  2S3V  Sec.  22.  In  any  action 
at  law  pending  in  the  superior 
court  the  plaintiff  or  the  defendant 
may  plea  any  equitable  defence, 
upon  which  an  unconditional  judg- 
ment can  be  rendered  for  the  party 
pleading  the  same:  provided,  that 
if  such  case  be  brought  from  a  dis- 
trict court,  such  equitable  plea  shall 
be  filed  as  other  pleas  are  required 
to  be  filed  in  cases  brought  from 
district  courts. 

2.  Hobbs  V.  Chamberlain,  55  Fla. 
661  (190S) :  Taylor  v.  State.  73  Md. 
20S.  222.  11  L.  R.  A.  852  (1890): 
Barton  v.  Baddiffe,  149  Mass.  275 
(1889). 


3.  Delaware.  The  defendant  may 
disclaim  interest  in  a  fund  or  chat- 
tels claimed  by  a  third  person,  and 
the  court  may  order  an  interplead- 
er between  the  plaintiff  and  the 
third  person.  Laws  of  Delaware, 
Vol.  17,  Ch.  218. 

Vermont.  The  defendant  in 
ejectment  on  a  mortgage  has  the 
same  defences  as  if  a  bill  of  fore- 
closure had  been  brought.  Pub. 
St.,  Ch.  92. 

Virginia  (Code  of  1904).  Sec. 
2741.  When  vendee,  ptc,  entitled 
to  conveyance  of  legal  title,  vendor 
cannot  recover.  A  vendor,  or  any 
claiming  under  him,  shall  not,  at 
law  any  more  than  in  equity,  re- 
cover against  a  vendee,  or  those 
dainiing  under  him.  lands  sold  by 
such  vendor  to  such  vendee,  when 
there  is  a  writing,  stating  the  pur- 
chase and  the  terms  thereof,  signed 
by  the  vendor  or  his  agent,  and 
there  has  been  such  payment  or 
performance  of  what  was  con- 
tracted to  be  paid  or  performed  on 
the  part  of  the  vendee,  as  would 
in  equity  entitle  him,  or  those 
claiming  under  him.  to  a  convey- 
ance of  the  legal  title  of  such  land 
from  the  vendor,  or  those  claiming 
under  him,  without  condition. 

Sec.  2742.  When  mortgagee  or 
trustee  not  to  recover.  The  pay- 
ment of  the  whole  sum,  or  the  per- 
formance of  the  whole  duty,  or  the 
accomplishment  of  the  whole  pur- 
pose, which  any  mortgage  or  deed 
of  trust  may  have  been  made  to 
secure  or  effect,  shall  prevent  the 
grantee,  or  his  heirs,  from  recover- 
ing at  law,  by  virtue  of  such  mort- 


EQUITABLE  DEFENCES 


505 


cedure  at  law  and  in  equity  is  carefully  preserved,  equi- 
table defences  are  unknown,  and  the  courts  of  law  uni- 


gage  or  deed  of  trust,  property 
thereby  conveyed,  wherever  the  de- 
fendant would  in  equity  be  entitled 
to  a  decree,  re-vesting  the  legal 
title   in   him,   without   condition. 

Sec.  2743.  Notice  to  be  given  of 
such  defences;  right  of  defendant 
to  resort  to  equity  not  affected. 
A  defendant  shall  not  be  allowed 
to  avail  himself  of  the  two  preced- 
ing sections,  unless  notice  in  writ- 
ing of  such  defence  shall  have  been 
given  ten  days  before  the  trial. 
Whether  he  shall  or  shall  not  make 
or  attempt  such  defence,  he  shall 
not  be  precluded  from  resorting 
to  equity  for  any  relief  to  which  he 
would  have  been  entitled  if  the 
said  sections  had  not  been  enacted. 

Sec.  3299.  Special  plea  of  set- 
off. In  any  action  on  a  contract, 
the  defendant  may  file  a  plea,  al- 
leging any  such  failure  in  the 
consideration  of  the  contract,  or 
fraud  in  its  procurement,  or  any 
such  breach  of  any  warranty  to 
him  of  the  title  or  the  soundness 
of  personal  property,  for  the  price 
or  value  whereof  he  entered  into 
the  contract,  or  any  other  matter 
as  would  entitle  him  either  to  re- 
cover damages  at  law  from  the 
plaintiff,  or  the  person  under  whom 
the  plaintiff  claims,  or  to  relief  in 
equity,  in  whole  or  in  part,  against 
the  obligation  of  the  contract;  or, 
if  the  contract  be  by  deed  alleging 
any  such  matter  arising  under  the 
contract,  existing  before  its  execu- 
tion, or  any  such  mistake  therein, 
or  in  the  execution  thereof,  or  any 
such  other  matter  as  would  en- 
title him  to  such  relief  in  equity; 
any  in  either  ease  alleging  the 
amount  to  which  he  is  entitled  by 


reason  of  the  matters  contained  in 
the  plea.  Every  such  plea  shall  be 
verified  by  affidavit. 

(These  statutes  will  not  be  ex- 
tended to  permit  the  use  of  other 
equitable  defences.  Tyson  v.  Wil- 
liamson, 96  Va.  636  (1889),  rescis- 
sion cannot  be  asked  by  defendant 
sued  on  a  bond;  Suttle  v.  Rich- 
mond, etc.,  R.  Co.,  76  Va.  284 
(1882),  equitable  estoppel  to  suit 
in  ejectment.) 

West  Virginia  (Code  of  1906,  Ch. 
126).  Sec.  5,  In  any  action  on  a 
contract,  the  defendant  may  file  a 
plea  alleging  any  such  failure  in 
the  consideration  of  the  contract, 
or  fraud  in  its  procurement,  or  any 
such  breach  of  any  warranty  to 
him  of  the  title  to  real  property  or 
of  the  title  or  the  soundness  of  per- 
sonal property,  for  the  price  or 
value  whereof  he  entered  into  the 
contract,  as  would  entitle  him, 
either  to  recover  damages  at  law 
from  the  plaintiff,  or  the  person 
under  whom  the  plaintiff  claims,  or 
to  relief  in  equity,  in  whole  or  in 
part,  against  the  obligation  of  the 
contract;  or  if  the  contract  be  by 
deed,  alleging  any  such  matter  ex- 
isting before  its  execution,  or  any 
such  mistake  therein,  or  in  the  ex- 
ecution thereof,  as  would  entitle 
him  to  such  relief  in  equity;  and 
in  either  case  alleging  the  amount 
to  which  he  is  entitled  by  reason 
of  the  matters  contained  in  the 
plea.  Every  such  plea  shall  be 
verified  by  affidavit. 

Sec.  6.  If  a  defendant  entitled 
to  such  plea  as  is  mentioned  in  the 
preceding  section  shall  not  tender 
it,  or  though  he  tender  it,  if  it  be 
rejected   for   not   being   offered   in 


506 


EQUITY  PRACTICE 


formly  direct  any  defendant  who  claims  an  equitable 
defence  to  seek  his  relief  in  the  courts  of  e<iuity.^ 


due  time,  he  shall  not  be  precluded 
from  such  relief  in  equity  as  ho 
would  have  been  entitled  to  if  the 
preceding  section  had  not  been 
enacted.  If  an  issue  in  fact  is 
joined  on  such  plea  and  the  same 
be  found  against  the  defendant,  he 
shall  be  barred  of  relief  in  equity 
upon  the  matters  alleged  in  the 
plea,  unless  upon  such  ground  as 
would  entitle  a  party  to  relief 
against  a  judgment  in  other  cases. 
Every  such  issue  in  fact  shall  be 
upon  a  general  replication  that  the 
plea  is  not  true;  and  the  plaintiff 
may  give  in  evidence,  on  such  issue, 
any  matter  which  could  be  given 
in  evidence,  under  a  special  replica- 
tion if  such  replication  were  al- 
lowed. 

(Under  the  above  sections  it  has 
been  held,  as  in  Virginia,  that  no 
other  equitable  defences  are  avail- 
able. Bank  v.  Parsons,  42  W.  Va. 
137  (1896),  release  of  principal  by 
creditor  to  suit  of  surety  on  a 
bond;  Poling  v.  Maddox,  41  W.  Ya. 
779  (1896),  same.  But  the. statute 
is  applicable  to  sealed  instruments 
as  well  as  other  contracts.  Fisher 
V.  Burden,  21  W.  Ya.  626  (1883).) 

4.  Illinois.  Baltimore,  etc.,  R. 
Co.  V.  Illinois  Central  R.  Co.,  137 
111.  9  (1891);  Kirkpatrick  v.  Clark, 
132  111.  342,  22  A.  S.  R.  53,  8  L.  R. 
A.  511  (1890);  McGinnis  v.  Fer- 
nandez, 126  111.  228  (1888);  Finlon 
V.  Clark,  118  111.  32  (1886);  St. 
Louis  Nat.  Stock  Yards  v.  Wiggins, 
etc.,  Co.,  102  111.  514  (1882);  John- 
son V.  Watson,  87  111.  535,  540 
(1877);  Mills  v.  Graves,  38  111.  455, 
87  Am.  Dec.  314  (1865).  But  in 
Phelps  V.  Nazworthy,  226  111.  254 
(1907),  the  defendant  in  ejectment 


was  allowed  to  show  that  the  plain- 
tiff claimed  under  a  fictitious  deed. 

Michigan.  Rauscli  v.  Briefer, 
138  Mich.  284  (1904);  Michigan 
Land,  etc.,  Co.  v.  Theney,  89  Mich, 
226,  232  (1891),  sevible;  McKay  v. 
Williams,  67  Mich.  547  (1887), 
semhle;  Harrett  v.  Kinney,  44 
Mich.  457  (1880);  Jeffreys  v.  Ham- 
lin, 42  Mich.  563  (1880);  Hayes  v. 
Livingston,  34  Mich.  384,  22  A.  S. 
R.  533  (1876). 

Mississippi.  Graham  v.  Warren, 
81  Miss.  330  (1902);  Morgan  v. 
Blewitt,  72  Miss.  903  (1895). 

Tennessee.  Ferguson  v.  Coward, 
12  Heisk.  572  (1873);  Langford  v. 
Love,  3  Sneed  309  (1855);  but  in 
R.  Co.  V.  Giardino,  116  Tenn.  368 
(1906),  and  Brundige  v.  R.  R.,  112 
Tenn.  526  (1903),  it  was  held  that 
fraud  in  obtaining  a  release  might 
be  set  up  in  reply  to  a  plea  of  re- 
lease. 

United  States.  Scott  v.  Arm- 
strong, 146  U.  S.  499,  36  L.  ed.  1059 
(1892);  Burnes  v.  Scott,  117  U.  S. 
582,  29  L.  ed.  991  (1886);  North- 
ern Pac.  R.  Co.  V.  Paine,  119  U.  S. 
561,  30  L.  ed.  513;  (1887);  Van 
Norden  v.  Morton,  99  U.  S.  380, 
25  L.  ed.  453  (1878);  Foster  v. 
Mora,  98  U.  S.  425,  25  L.  ed.  191 
(1879)  ;  Levi  v.  Matthews,  145  Fed. 
152,  76  C.  C.  A.  122  (1906);  High- 
land Min.  Co.  V.  Studley,  116  Fed. 
852,  54  C.  C.  A.  186  (1902);  Davis 
V.  Davis,  72  Fed.  81,  32  U.  S.  App. 
723,  18  C.  C.  A.  438  (1896);  Mul- 
qiieen  v.  Schliehter,  etc.,  Co.,  108  Fed. 
931  (C.  C.  1901).  An  answer  in  a 
state  court  pleading  an  equitable 
defence  must  be  changed  when  the 
action  is  removed  to  the  Federal 
court.     LaMothe,  etc.,  Co.  v.  Natl., 


EQUITABLE  DEFENCES 


507 


§  293.  — Requisites  and  limitations.  Tlie  courts  univer- 
sally regard  the  i)rivilege  of  filiug  an  equitable  defence 
as  so  far  analogous  to  the  privilege  of  filing  a  bill  in 
equity,  that  it  can  only  be  available  when  there  is  no 
adequate  remedy  at  law.  The  equitable  plea  must  set 
up  ground  for  relief  which  would  in  equity  justify  the 
filing  of  a  bill  in  equity  asking  unconditional  relief,^  and 
the  plea  will  not  stand  if  the  matter  there  set  out  is 
available   as   a  legal   defence  ^   or  requires   conditional 


etc.,  Co.,  15  Blatchf.  432  (C.  C. 
1879). 

In  some  of  the  jurisdictions 
above  a  distinction  is  drawn  be- 
tween suits  at  law  on  sealed  instru- 
ments and  on  parol  contracts;  the 
defendant  being  allowed  to  show 
fraud  in  relation  to  the  considera- 
tion, in  the  latter  case,  but  in  the 
former  case  being  remitted  to 
equity.  Robinson  v.  Yetter,  238  111. 
320  (1909),  aff.  143  111.  App.  172; 
Jackson  v.  Security  L.  I.  Co.,  233 
111.  161  (1908);  Papke  v.  Ham- 
mond Co.,  192  111.  631  (1901); 
Eschenck  v.  Traver,  65  111.  379 
(1872);  Stryker  v.  Vanderbilt,  25 
N.  J.  L.  482  (1856);  Am.  Sign  Co. 
V.  Electro.  Lens,  etc.,  Co.,  211  Fed. 
196  (1914);  compare  Mulford  v. 
Peterson,  35  N.  J.  L.  127  (1871), 
deed  in  fraud  of  creditors. 

5.  Urner  v.  Sollenberger,  89  Md. 
316  (1899);  Williams  v.  Peters,  72 
Md.  584  (1890);  Page  v.  Higgins, 
150  Mass.  27,  5  L.  R.  A.  152  (1889) ; 
Roberts  v.  White,  146  Mass.  256 
(1888);  Sherman  v.  Galbraith,  14 
Mass.  440  (1886);  Newport  Hospi- 
tal V.  Carter,  15  R.  I.  285  (1886). 

Accordingly,  an  equitable  plea 
will  not  be  allowed  to  fill  the  office 
of  an  appeal  from  other  proceed- 
ings. Taylor  v.  State,  73  Md.  208, 
222,  11  L.  R.  A.  852  (1890). 


An  equitable  plea  will  be  struck 
out  which  fails  to  show  that  the 
defendant  has  any  ground  for 
equitable  relief.  See,  in  addition 
to  the  cases  above,  Robeson  v.  First 
Xat.  Bank,  42  Fla.  504  (1900); 
Home  v.  Carter,  20  Fla.  45  (1883); 
Chemical,  etc.,  Co.  v.  Howard,  150 
Mass.  495  (1890);  Barton  v.  Rad- 
cliffe,  149  Mass.  275  (1889);  Mason 
V.  Mason,  140  Mass.  63  (1885); 
Murphy  v.  Hubert,  16  Pa.  St.  50 
(1851).  In  the  last-mentioned  case, 
plaintiff  sued  in  ejectment  on  a 
deed  which  defendants  claimed  was 
given  to  plaintiff  by  defendant  in 
fraud  of  creditors.  The  court  held 
that  it  is  the  defendant  who  is 
asking  equitable  aid  of  the  court, 
and  that  since  he  did  not  come  in 
with  "clean  hands"  he  could  not 
prevail. 

6.  Florida.  Pensacola  Lumber 
Co.  V.  Sutherland-Innes  Co.,  50  Fla. 
244  (1905);  Johnson  v.  Drew,  34 
Fla.  130  (1894);  Marshall  v.  Bum- 
by,  25  Fla.  619  (1889) ;  Johnston  v. 
Allen,  22  Fla.  224,  1  A.  S.  R.  180 
(1886). 

Maryland.  Bond  v.  Murray,  84 
Atl.  655  (Md.  1913)  ;  Falck  v.  Bar- 
low, 110  Md.  159  (1909) ;  Albert  v. 
Frees,  103  Md.  583  (1906);  Robey 
v.  State,  94  Md.  61   (1901). 


50S  EQUITY  PRACTICE 

equitable  relief,"  although  it  is  not  unlikely  that  the 
courts  would  penuit  an  equitable  plea  to  stand  which 
stated  matter  falling  within  the  concuiTeut  jurisdiction 
of  law  and  ecjuity.  The  statutes  were  not  enacted  to  per- 
mit defendants  to  delay  action  at  law  by  withholding 
legal  defences  until  e<:iuitable  matters  have  been  dis- 
posed of.  It  is  probable  however  that  if  the  defendant 
should  set  forth  matters  in  the  form  of  an  equitable  plea 
which  in  reality  constituted  a  legal  defence,  having 
merely  mistaken  the  form  of  his  pleading,  his  plea  might 
be  reformed  and  treated  as  an  ordinary  plea  at  law;  or 
that  if  he  be  in  doubt  as  to  whether  he  had  an  equitable 
or  a  legal  defence,  he  may  set  out  the  facts  and  submit 
them  to  the  court,  or  file  both  legal  and  equitable  defences 
covering  the  same  facts.^  If  it  should  then  appear  to  the 
court  that  the  matters  so  set  out  constituted  no  defence 
either  at  law  or  in  equity,  then  the  defendant  should  sub- 
mit to  judgment.  He  must  be  supposed  to  have  stated 
his  whole  case,*  and  the  conclusion  is  that  he  has  no 
defence.**  In  the  footnote  will  be  found  examples  of 
equitable  defences  which  have  been  allowed  by  the 
courts." 

Massadmsetts.     Barton   v.  Bad-  10.  Miller  v.  Waldoboro,  etc.,  Co., 

cliffe,  149  Mass.  275  (1889).  SS  Me.  605  (1S96». 

Shode  Island.    Am.  Big.,  ete.,  Co.  11.  Florida.     Smith  v.  Love,  49 

V.  Booth,  17  B,  L  736  (1892).  Fla.  230  (1905),  ejectment,  dissent 

7.  Umer  v.  SoUenberger,  89  Md-  on  eonstitational  grounds;  Walls  v. 
316  (1899):  Williams  v.  Peters,  72  Endel,  20  Fla.  86  (1883),  ejectment. 
Md.  584  (1890):  Page  v.  Higgins,  Maine.  Hurd  v.  Chase.  102  Me. 
1-50  Mass.  27,  5  lu  B.  A.  152  (1SS9)  :  27  (1906),  real  action:  Hussev  v. 
Boberts  v.  White,  146  Mass.  256  Fisher,  94  Me.  306  (1900),  real  ac- 
(1888):  Sherman  t.  Galbraith,  141  tion. 

Mass.  440  (1886).  Maryland.     Tmer    v.    SoUenber- 

8.  This  was  done  in  Bobey  v.  ger.  S9  Md.  316  (1899),  action  on 
State,  94  Md.  61  (1901).  The  court  stock  subscription,  answer  that  pro- 
sustained  the  legal  defence  and  dis-  meters  made  fraudulent  representa- 
missed   the   equitable  plea   on   de-  tion. 

murrer.  Massachusetts.     Peaslee  v.  Peas- 

9.  Miller  v.  Waldoboro,  etc.,  Co.,  lee.  147  Mass.  171  (ISSSt.  dower, 
88  Me.  605  (1896).  ante-nuptial  contract;  Xott  v.  Mfg. 


EQUITABLE  DEFENCES 


509 


§  294.  — Frame.  In  several  of  the  states  tlie  statutes 
si^ecify  that  an  equitable  plea  shall  begin  with  the  words 
"for  defence  on  equitable  grounds  the  defendant  says."  ^^ 
Otherwise  the  statutes  do  not  make  any  requirements  as 
to  the  form  of  such  pleas,  although  the  cases  hold  that 
the  plea  must  be  stated  with  care  and  particularity.^^ 
The  form  need  not  be  that  prescribed  by  chancery  rules 
and  equity  practice.  The  legislatures  did  not  intend  to 
change  the  character  of  the  action  in  the  courts  of  com- 
mon law,  or  to  impart  to  it  the  peculiar  formalities  and 
technicalities  of  a  suit  in  equity.  Accordingly  it  is  not 
usually  necessary  that  the  plea  be  verified  ^^  and  no  leave 
of  court  is  necessary  before  filing  it.^^ 

§  295.  Equitable  defence  how  met.  The  equitable  plea, 
being  a  pleading  in  an  action  at  law  and  not  in  equity, 
can  be  met,  like  any  other  pleading  at  law,  by  demurrer, 
traverse,  or  replication,  although  demurrers  to  pleas  and 
answers  in  equity  are  not  allowed;  or  it  may  be  met  by 
motion  to  strike  it  out.^*^ 


Co.,  142  Mass.  479  (1886),  writ  of 
entry. 

Pennsylvania.  Atheiholt  v. 
Hughes,  209  Pa.  156  (1904),  as- 
sumpsit, fraud  in  the  considera- 
tion. 

Virginia.  Grayson  v.  Buchanan, 
88  Va.  251  (1891),  debt  on  bonds, 
plea  of  partial  failure  of  considera- 
tion; Brown  v.  Eice,  76  Va.  629 
(1882),  debt  on  bonds,  pleas  of 
fraud  and  mistake  in  the  considera- 
tion; Burtners  v.  Keran,  24  Gratt. 
(Va.)  42,  71  (1873),  covenant, 
fraudulent  representations. 

West  Virginia.  Fisher  v.  Bur- 
dell,  21  W.  Va.  626  (1883),  debt  on 
bond,  plea  of  fraud  in  the  consid- 
eration. 

12.  Florida  and  Maryland, — see 
footnote  1,  above. 

13.  Pensacola     Lumber      Co.     v. 


Sutherland-Innes  Co.,  50  Fla.  244 
(1905);  Elvers  v.  Elvers,  38  Fla. 
65  (1896);  Miller  v.  Waldoboro, 
etc.,  Co.,  88  Me.  605  (1896);  Tyson 
v.  Williamson,  96  Va.  636  (1899); 
Burtners  v.  Keran,  24  Gratt.  (Va.) 
42,  71  (1873). 

14.  Miller  v.  Waldoboro,  etc.,  Co., 
88  Me.  605  (1896). 

But,  contra,  by  statute  in  Vir- 
ginia and  West  Virginia;  Keckley 
v.  Union  Bank,  79  Va.  458  (1884). 
These  statutory  provisions  may, 
however,  be  waived.  Grayson  v. 
Buchanan,  88  Va.  251  (1891). 

15.  Miller  v.  Waldoboro,  etc.,  Co., 
88  Me.  605  (1896). 

16.  Bacon  v.  Green,  36  Fla.  325 
(1895). 

By  the  West  Virginia  statute  the 
plea  should  be  met  by  a  general 
replication,  but   a   defendant   may 


510 


EQUITY  PRACTICE 


g  296.  — Effect.  Wlienever  an  equitable  plea  prevails, 
its  etiect  is  limited  to  securing  for  the  defendant  a  judg- 
ment in  the  pending  action  at  law;  atlii-mative  relief  can- 
not be  awarded  him.^'  If  however  the  plaintiff  prevails 
in  an  action  in  which  an  equitable  defence  was  or  might 
have  been  filed,  the  matter  is  in  most  jurisdictions  con- 
sidered res  judicata,  so  that  the  defendant  cannot  seek 
relief  against  the  judgment  by  bill  in  equity  based  on  the 
same  facts,^^  nor  can  a  defendant  who  might  defend  by 
an  equitable  plea,  bring  a  bill  in  equity  against  the  pend- 
ing suit.^^    In  a  few  jurisdictions  the  filing  of  an  equit- 


Tvaive  the  plaintiff's  informality  in 
filing  a  special  replication.  Bank 
V.  Showaere,  26  W.  Va.  48   (1SS5). 

If  a  case  goes  to  the  jury  on  an 
equitable  plea,  it  is  said  in  Wylie 
V.  Mousley,  132  Pa.  65  (1S90),  that 
the  judge  is  a  chancellor  and  the 
jury  his  advisers,  for  the  purpose 
of  deciding  upon  the  plea,  and  the 
judge  may  refuse  to  submit  to  the 
jury  if  the  defendant  does  not 
make  a  prima  facie  case  on  the  plea. 

So  also  in  the  Code  states.  Wal- 
lace V.  Maples,  79  Cal.  483  (1889  j ; 
Weber  v.  Marshall,  19  Cal.  447 
(1861);  Adickes  v.  Lowry,  12  S.  C. 
97   (1879). 

17.  Florida.  Norman  v.  Beck- 
man,  58  Fla.  325   (1909). 

Maine.  Martin  v.  Smith,  102  Me. 
27  (1900^ ;  Hussey  v.  Fisher,  94  Me. 
306  (1900). 

Maryland.  Williams  v.  Peters, 
72  Md.  584  (1890),  semble. 

Massachusetts.  Roberts  v.  White, 
146  Mass.  256   (1888). 

Ehode  Island.  Am.  Big.  Loan, 
etc.,  Co.  V.  Booth,  17  E.  I.  736 
(1892) ;  Hawkins  v.  Baker,  14  R.  I. 
139   (1883). 

Virginia.  Tyson  v.  Williamson, 
96  Va.  636  (1899). 

But  in  Highlands  v.  E.  Co.,  209 


Pa.  286  (1904),  the  plaintiff  was 
allowed  to  reform  a  release  which 
the  defendant  set  up  as  plea  in  an 
action  at  law. 

In  Martin  v.  Smith,  102  Me.  27 
(1906),  the  court  declined  to  allow 
either  an  equitable  defence  in  the 
action  at  law  or  a  change  of  the 
action  at  law  into  an  action  in 
equity  under  the  Maine  statute, 
but  directed  that  the  suit  at  law 
be  continued  until  the  defendant 
should  have  had  opportunity  to  file 
bill  in  equity. 

In  Code  states,  affirmative  relief 
can  be  had  under  equitable  pleas. 
Turner  v.  Rives,  75  Ga.  606,  608 
(1885);  Vail  v.  Jones,  31  lud.  467 
(1869);  Rosierz  v.  VanDam,  16  la. 
175  (1864);  Goodman  v.  Nicholds, 
44  Kan.  22  (1890) ;  Corrigan  v.  Bill, 
73  Mo.  57  (1880);  Dempsey  v. 
Rhodes,  93  X.  C.  127  (1885);  Hop- 
pough  V.  Struble,  60  X.  Y.  430 
(1875). 

18.  Aetna  Life  Ins.  Co.  v.  Trem- 
blay,  101  Me.  5S5  (1906);  Penn  v. 
Reynolds,  23  Gratt.  (Va.)  518,  523 
(1873). 

19.  X.  T.,  X.  H.  &  H.  R.  Co.  v. 
Martin.  158  Mass.  313  (1893); 
George    Woods   Co.   v.   Storer,   144 


EQUITABLE  DEFENCES 


511 


able  plea  is  a  matter  of  election  for  the  defendant,  and 
if  he  does  not  file  it,  he  may  let  judgment  go  against  him 
and  seek  relief  in  equity  -"  or  he  may  even  witlidraw 
an  equitable  plea  which  has  been  filed,  and  enjoin  the 
proceeding  at  law,^^  although  he  is  concluded  if  he  does 
present  his  e(iuitablo  defence  in  the  action  at  law.-- 

§  297.  Equitable  replications.  By  the  statutes  of  sev- 
eral of  the  jurisdictions  where  equitable  defences  are  per- 
mitted, an  equitable  replication  may  be  filed  to  the  de- 
fendant's plea  to  a  declaration  at  common  law.-^  No 
cases  upon  such  replication  are  to  be  found  in  the  reports. 


Mass.  399  (1887);  McCulla  v.  Bea- 
dleston,  17  R.  I.  20  (1890). 

In  Clark  v.  Chase,  101  Me.  270 
(1906),  the  parties  agreed  to  take 
the  controversy  to  the  upper  court 
on  a  bill  in  equity  to  enjoin  a  suit 
at  law,  but  the  court  said  it  would 
have  been  better  for  the  defendant 
in  the  law  suit  to  have  filed  an 
equitable   plea. 

20.  Hobbs  V.  Chamberlin,  55  Fla. 
661  (1908);  Jarrett  v.  Goodnow,  39 
W.  Va.  602   (1894). 

But  the  West  Virginia  cases  de- 
pend   on    the    express    wording    of 


the  statute,  and  in  Black  v.  Smith, 
15  W.  Va.  780  (1870),  a  bill  in 
equity  against  a  (West  Virginia; 
judgmeut  founded  on  a  (Pennsyl- 
vania) judgment  was  dismissed 
where  it  appeared  that  the  present 
plaintiff  might  in  the  (Pennsyl- 
vania) suit  have  set  up  the  facts 
on  which  he  now  relies. 

21.  Knott    V.    Seamands,    25    W. 
Va.  99  (1884). 

22.  Bras   v.   Vickers,   27   W.   Va. 
456  (1886). 

23.  See    the    statutes   in    note    1, 
ante,  p.  502. 


CHAPTER  XVI 

BEPLICATIOXS 

§  298.  General  nature  of  a  replication.  If  the  plaintiff 
neither  excepts  to  an  answer  for  insufficiency  nor  amends 
his  bill,  the  next  step  to  be  taken  is  to  file  a  replication 
to  the  answer.^  A  general  replication,  which  is  the  only 
kind  of  replication  now  in  use  in  e«:inity.-  is  an  averment 


1.  In  a  few  states,  replieations 
to  answers  have  been  abolished  by 
eode  provisions,  the  plaintiff  in 
sneh  states  in>lieating  his  intention 
to  join  issue  by  beginning  to  take 
oat  testimony. 

Alabama,  Code,  See.  3122; 
Adair  v.  Feder,  133  Ala.  620 
(1901);  Johnson  v.  Dadeville,  127 
Ala.  244  (1S99):  Tyson  v.  Decatur, 
ete.,  Co.,  121  Ala.  414  (1898). 

MlnaiaaappL  Code,  Sec.  591;  Ta- 
zoo,  etc.,  B.  Co.  V.  Adams,  81  Miss. 
90.  32  So.  937  (1907). 

TemwBR  Code,  Sec.  6133;  Col- 
lins V.  Xorth  British,  ete^  Ins.  Co., 
91  Tenn.  432  (1S92). 

Beplications  to  pleas  are  unnec- 
essary in  Alabama.  State  t.  Ben- 
iiere,'55  So.  298  (Ala.  1911);  Sellers 
T.  Farmer,  147  Ala.  446  (1906); 
Adair  v.  Feeder,  133  Ala.  620 
(1901) ;  Tyson  v.  Decatur  Land  Co., 
121  Ala.  414  (1898).  But  in  Mis- 
sissippi and  Tennessee  they  are  in 
use.  Mississippi,  Co<ie,  Sec.  592; 
Cheatham  v.  Pearee,  S9  Tenn.  668 
(1891) ;  Allen  v.  Allen,  3  Tenn.  Ch. 
145  (1876). 

In  Bhode  Island,  a  statement  by 


the  plaintiff  that  he  joins  issue  is 
sufficient  instead  of  a  formal  repli- 
cation to  plea  or  answer.  Gen. 
Laws,  Ch.  2S9,  Sec.  9. 

In  Delaware,  replication  is  filed 
by  the  register  for  the  plaintiff  as 
of  course  after  the  time  for  ex- 
cepting to  the  answer  has  expired. 
Eq.  Bole  29. 

By  the  Federal  rules  of  1913,  No. 
31,  no  reply  is  necessary  without 
special  order  of  court,  unless  the 
answer  asserts  a  setoff  or  counter- 
claim. The  cause  is  deemed  at 
issue  upon  filing  the  answer,  and 
new  or  affirmative  matter  in  the 
answer  is  deemed  to  be  denied  by 
the  plaintiff.  Beplies  must  be  filed, 
however,  to  answers  which  include 
setoffs  or  counterclaims. 

2.  Special  replications,  L  e.,  repli- 
cations stating  additional  facts  on 
the  part  of  the  plaintiff  to  meet 
new  matter  in  the  plea  or  answer, 
have  long  been  disused,  and  are  not 
now  permitted;  instead,  the  plain- 
tiff may  amend  his  bill  after  the 
plea  or  answer  is  filed,  amd  there- 
after if  necessary  the  defendant 
may  put  in  a  further  answer. 


512 


KEPLICATIONS 


513 


of  the  truth  and  sufficiency  of  the  plaintiff's  bill,  and  a 
general  denial  of  the  truth  and  sufficiency  of  the  defend- 
ant's answer.  Its  purpose  and  eft'ect  are  to  bring  the 
parties  to  a  direct  issue,  which  may  be  determined  by  evi- 
dence. A  replication  may  also  be  filed  to  a  plea,  as  has 
been  seen,^  in  which  case  its  purpose  and  effect  are  to 


Ala'bama.  Am.  Freehold  Co.  v. 
Dykes,  111  Ala.  178  (1895);  Smith 
V.  Vaughan,  78  Ala.  201  (1884). 

Florida.  Gen.  Stat.,  Ch.  8,  Sec. 
1875;   Eq.  Rule  66. 

Illinois.  White  v.  Morrison,  11 
111.  361   (1849). 

Maryland.  Code,  Art.  16,  Sec. 
162;  Equity  Rule  29;  Munich  Rein- 
surance Co.  V.  United  Surety  Co., 
77  Atl.  579  (Md.  1910). 

Massachusetts.  Equity  Rule  15; 
Newton  v.  Thayer,  17  Pick. 
(Mass.)   129   (1835). 

Michigan.     Equity  Rule  12. 

New  Jersey.  McLane  v.  Shep- 
herd, 21  N.  J.  E.  76  (1870). 

Pennsylvania.    Equity  Rule  47. 

Rhode  Island.    Equity  Rule  24. 

Vermont.    Equity  Rule  27. 

In  Illinois  replications  are  to  be 
"general  with  like  advantage  to 
all  parties  as  if  special."  J.  &  A. 
1  908;  Hurd's  Stat.,  Ch.  22,  Sec.  28. 

When  a  special  replication  is 
filed,  it  will  be  treated  as  a  gen- 
eral replication,  and  the  special  de- 
nials will  be  treated  as  surplusage. 
Pinney  v.  Pinney,  46  Fla.  559 
(1903);  Wren  v.  Spencer  Optical, 
etc.,  Co.,  P.  C.  18,062,  5  B.  &  A.  61 
(C.  C.   1879). 

A  replication  cannot  fill  the  of- 
fice of  exceptions  to  the  answer. 
Robinson  v.  American  Car,  etc.,  Co., 
135  Fed.  693,  68  C.  C.  A.  331,  aff. 
132  Fed.  165  (1905). 

In  West  Virginia  a  verified  spe- 
cial replication  may  be  filed  to  put 
in  issue  any  verified  answer  in  the 
Whitehouse  E.  P.  Vol.  I — 33 


nature  of  a  cross  bill  which  asks 
affirmative  relief,  but  this  provision 
has  been  interpreted  by  a  series  of 
cases  as  not  affecting  the  general 
chancery  practice  in  regard  to  repli- 
cations. Code,  Sees.  4789,  4790. 
Litigious  and  immaterial  allega- 
tions in  an  answer  need  not  be  re- 
plied to.  Briggs  v.  Enslow,  44  W. 
Va.  499  (1898).  A  codefendant 
may  not  file  a  special  replication 
to  an  answer  seeking  affirmative 
relief  against  others  than  himself. 
Ibid.  Only  an  answer  seeking  af- 
firmative relief  may  be  specially 
replied  to.  Goff  v.  Price,  42  W.  Va. 
384  (1896);  Kilbreth  v.  Root's 
Admr.,  33  W.  Va.  600  (1890); 
Smith  V.  Turley,  32  W.  Va.  14 
(1889).  New  matter  in  behalf  of 
the  plaintiff  must  be  introduced  by 
amendment  or  supplemental  bill, 
not  by  special  replication.  Ward 
V.  Ward's  Heirs,  50  W.  Va.  517 
(1901);  Harrison  v.  Brewster,  38 
W.  Va.  294  (1893);  Elliot  v.  Tra- 
hern,  35  W.  Va.  634  (1891). 

The  English  practice  of  serving 
upon  the  defendant  a  subpoena  to 
rejoin,  and  filing  a  rejoinder,  has 
never  prevailed  in  this  country,  but 
the  pleadings  terminate  with  the 
replication.  Story's  Eq.  PI.  (10th 
ed.),  Sec.  879,  n.  4;  Florida,  Eq. 
Rule  67;  Maryland,  Code,  Art.  16, 
Sec.  161;  Eq.  Rule  28;  Michigan, 
How.  Ann.  St.  (2d  ed.)  §  11,978;  C. 
L.,  Ch.  29,  Sec.  55  (461) ;  Pennsyl- 
vania, Eq.  Rule  46. 

3.  Sec.  255,  ante,  p.  440. 


514  EQUITY  PRACTICE 

deny  the  triitli  of  the  plea,  but  to  admit  its  legal  suffi- 
ciency as  a  bar  if  true."*  A  replication  to  an  answer,  on 
the  other  hand,  expressly  denies  the  legal  sufficiency  of 
the  latter  as  a  bar  to  the  plaintiff's  suit,  but  admits  its 
sufficiency  as  a  discovery.^  Consequently,  the  plaintiff 
cannot  except  for  insufficiency  after  replication."^  A  rep- 
lication is  a  waiver  of  any  mere  technical  objection  to 
the  foiTii  in  which  the  defences  are  presented.' 

§299.  Fonn  of  replication.  The  full  title  of  the  cause 
as  it  stands  at  the  time  the  replication  is  filed,  should 
be  set  forth  in  the  heading  of  the  replication,  but  only 
the  names  of  such  defendants  as  have  appeared  should 
be  inserted  or  referred  to  in  the  body.  If  the  plaintiff 
joins  issue  with  all  the  defendants,  their  names  need  not 
be  repeated  in  the  body.  It  is  sufficient  in  such  cases  to 
designate  them  as  ''all  the  defendants,"  but  if  he  does 
not  join  issue  with  all,  the  names  of  the  defendants  must 
be  set  out  in  the  body.^  The  chancery  rules  and  statutes 
in  some  jurisdiction  make  provisions  in  regard  to  the 
nature  and  form  of  replications.^ 

4,  Sec.  250,  ante,  pp.  440  et  seq.  hie;   Beals  v.   Illinois,  etc.,  E.   Co., 

5.  Story's  Eq.  PI.  (10th  ed.),  133  U.  S.  290,  33  L.  ed.  608  (1889). 
Sec.  877.  "A  general  replication  A  replication  does  not  deny  the 
puts  in  issue  all  facts  alleged  in  truth  of  admissions  contained  in 
the  answer."  O'Hare  v.  Downing,  the  answer.  Cavender  v.  Cavender, 
130  Mass.  16  (1880).     Particularly,  8  Fed.  641   (C.  C.  1881). 

a    general    replication    denies    the  6.  Story 's  Eq.  PI.  (10th  ed.).  Sec. 

truth    of    every    allegation    of    the  877,    citing    Cooper's    Eq.    PI.    328, 

answer  not  responsive  to  the  bill.  329. 

Humes  v.  Scruggs,  94  U.  S.  22,  24  7.  McKim  v.   Mason,   2   Md.   Ch. 

L.  ed.  51  (1876).    And  see  Chapter  510  (1849). 

XIII,  Sec.  282,  ante,  p.  486.  8.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 

Conversely,  the  truth  of  any  such  830. 

allegation  in   an   answer  is  not   in  Where    any   defendant   has   died 

issue  unless  a  replication  has  been  since    the    filing    of    the    bill,    the 

filed.     Eogers  v.  Mitchell,  41  X.  H.  words  "since  deceased"  should  fol- 

154   (1860).  low  his  name  in  the  title,  but  his 

A  replication  to  an  answer  does  name  should  be  omitted  in  the  body 

not  deny  the  allegations  in  a  plea  of  the  replication.   Ibid. 

accompanying  the  answer.     Crump  9.  Maine.    The  replication  "shall 

V.  Perkins,  18  Fla.  353  (1881),  sem-  state  in  substance  that  the  allega- 


REPLICATIONS  515 

A  replication  like  other  pleadings  in  equity  should  not 
contain  any  scandalous  or  impertinent  matter,  and  a  rep- 
lication, especially,  being  a  purely  formal  pleading, 
should  not  contain  any  matter  outside  the  established 
forms,  which  will  be  found  in  the  third  volume.  A  replica- 
tion need  only  be  signed  by  the  plaintiff's  solicitor. 

§300.  Waiver  of  replication.  Y/hen  a  cause  is  set 
down  to  be  heard  on  bill  and  answer  only,  the  answer  is 
taken  to  be  true,  and  the  replication  is  held  to  be  waived.^  *^ 
This  may  happen  either  because  the  defendant  in  his 
answer  admits  the  plaintiff's  case,  or  enough  of  it  to 
enable  him  to  go  to  a  hearing  without  evidence,  or  because 
the  plaintiff  is  willing  to  rest  the  case  on  the  facts  as 
stated  in  the  answer. 

Likewise  where  the  parties  go  to  trial  without  the 
issues  being  made  up  by  the  filing  of  a  replication  and 
the  cause  is  heard  upon  evidence,  they  will  be  held  to 
have  waived  the  formality  of  a  replication.^^ 

tions  in  the  bill  are  true  and  those  forth  is  not  true,  and  that  this  the 

in  the  answer  are  not  true.    If  the  plaintiff    is    ready    to    prove.      Eq. 

plaintiff  desires  any  issues  of  fact  Eule  98. 

submitted  to  a  jury,  he  shall  make  New  Jersey.     "The  complainant 
such  claim  at  the  end  of  his  repli-  joins  issue  on  the  answer  of  the  de- 
cation,    and    briefly    state    the    is-  fendant. "     Eq.   Eule   207. 
sues."     Eq.  Rule  17.          .  Pennsylvania.         The       plaintiff 

Maryland.      The    plaintiff    joins  "joins  issue  on  the  matters  alleged 

issue  on  the  matters  alleged  in  the  in   the  answer."     Eq.   Rule  46. 

answer  so  far  as  the  same  may  be  Rhode  Island.     A  statement  that 

taken  to  deny  or  avoid  the  allega-  the  plaintiff  joins  issue  on  the  an- 

tions   of   the   bill.      Code,   Art.    16,  swer    may    be    used    instead    of    a 

Sec.  161;   Eq.  Rule  28.  formal  replication.     Gen.  Laws,  Ch. 

Massacliusetts.    The  form  of  gen-  289,  Sec.  9. 

eral    replication    is    that    plaintiff  Vermont.     The  plaintiff  joins  is- 

joins    issue    on    the    answer.      Eq.  sue  on  the  defendant 's  answer.   Eq. 

Rule   15.  Rule  27. 

Michigan.      The  replication  states  10.  Story's    Eq.    PI.    (10th    ed.), 

that    notwithstanding   the    answer.  Sec.  877.    See  Sec.  281,  arite,  p.  485. 

the  plaintiff  is  entitled  to  recover.  11.  Illinois.      Prot   v.   Davis,   241 

Eq.  Rule  12.  111.     434     (1909);     Unity     Co.     v. 

New    Hampshire,      The    replica-  Equitable   Trust  Co.,   204  111.   595, 

tion    in    substance    says    that    the  aff.  107  111.  App.  449  (1903),  repli- 

bill  is  true  and  the  answer  as  set  cation  formally  defective;  Jones  v. 


516 


EQUITY  PRACTICE 


§  301.  Time  for  filing  replication.  It  is  provided  in  the 
statutes  or  rules  in  the  vanons  jurisdictions  when  repli- 
cations shall  be  filed.^-    Usnallv  this  is  within  a  certain 


Xeelv,  72  DL  449  (1374);  Corbos 
T.  Teed,  69  HL  305  (1873). 

140  Mass.  578  (1885). 

Hew  Tfamp»Jiir«»  Dudley  t. 
Eastman,  70  X.  H.  418  (1900). 

IHisiBia.  Jones  t.  De^e,  8ft  Ta. 
685  (1888). 

West  IHrgiina.  Moore  t.  Wheel- 
er, 10  W.  Ta-  35  (1877). 

United  States.  Baltimore,  ete^ 
Bank  t.  Conne«tieat,  etc,  Insor- 
^ee  C^  101  r.  &  5ft,  26  Lu  ed.  693 
(1881). 

Several  of  the  above  cases  hold 
that  after  a  hearing  upon  the  mer- 
its the  defendant  eannot  raise  the 
objection  that  no  replication  was 
filed.  Cinnpare  eases  in  notes  13, 
14  and  15,  po^r  on  rqnlicatkHi  mne 
pro  tmme. 

12.  Florida.  3-  z^it  rule  day 
after  an?"  fs  court  al- 

lows  fur:  ■  :  i.erwise    bill 

may  be  dismissed,  but  after  order 
of  dismissa]  the  court  may  permit 
filing  of  replication  Jtime  pro  tmme 
on  plaintiff's  submitting  to  speed 
the  cause  and  to  other  terms.  6.  Sl, 
Ch.  X,  Sec.  1874:  Eq.  Bules  55,  67. 

''"»"«'■«  Within  four  days  after 
service  of  notice  that  answer  has 
been  filed.  J.  &  A.  T90S;  Hmd's 
Stat.,  Ch.  22,  Sec.  28. 

Maine.  Within  fifteen  days  after 
service  of  notice  of  answer  filed, 
but  this  time  may  be  enlarged  on 
fezBS,  or  bin  dismissed  on  def end- 
aat's  motion  after  the  time  for  fil- 
ing replieation  has  e^nied.  R.  S., 
Ch.  79,  Sec  18. 

Ibzj^aiid.  Within  fifteen  days 
after  answer  filed  unless  set  for 


hearing  on  bill  and  answer;  there- 
after defendant  may  obtain  a  rule 
allowing  plaintiff  ten  days  longer, 
at  the  end  of  whieh  time  the  biD 
may  be  dismimed.  Code,  Art.  16, 
Sec  161;  Eq.  Bnle  28. 

Mawiarlmaetta.  Within  one 
month  after  answer  due  or  if  filed 
ahead  of  time,  then  within  one 
montt  fr:z:  iiotice  of  filing.  Eq. 
Bule  :- 

Mirlrigan.  Within  fifteen  days 
after  service  nf  the  answer,  other- 
wise easr  for  ht>»ring  an 
biD  and  £.:  li^^^h  the  court 
may  extez  :  q.  Bnle  12. 

Hew  H.^iii^^_.ic.  .Tithin  one 
month  after  delivery  of  copy  of  an- 
swer, or  after  time  for  filing  amend- 
ed answer.    Eq.  Bnle  98. 

Hew  Jeney.  Within  thirty  days 
after  expiration  of  time  limited  for 
filing  answer,  otherwise  biD  will  be 
dismissed  unless  good  cause  for 
del^  is  shown.  Ctmip.  St^ 
" Chani^ery . "  S*«?.  2-5  (as  ameoded. 
1913  . 

Pe- "  -■.  -  ■  r .  ■  ~ithin  ten  days 
after  unless  set  for 

heariL^   :i  sirer,  other- 

wise defr:  rain  a  rule 

on  plain:  ::  '   _   days 

after   no:  z^   on 

failure  tc  r  i   ■  5 

will  be  ti:Li:_;:;_  ::  _  _  i 
doned  his  right  to  traverse  the  ac- 
Eq.  Rule  46l 

Within  ten  days  from 
the  time  fimited  for  filing  excep- 
tions to  the  answer,  otherwise  ease 
win  be  considered  as  set  for  hear- 
ing on  bin  and  answer.  Eq.  Bole 
27. 


REPLICATIONS 


517 


length  of  time  after  the  filing  of  the  answer.  As  soon 
as  the  replication  is  filed,  notice  thereof  should  be  given 
to  the  other  side  in  the  usual  way,  in  jurisdictions  where 
it  is  customary  to  give  notice  of  the  filing  of  pleadings. 

§  302.  Replications  nunc  pro  tunc.  A  replication  is 
considered  as  a  mere  formal  pleading,  and  if  the  plain- 
tiff has  omitted  to  file  it  at  the  joroper  time,  the  court  will 
allow  it  to  be  done  afterward,  mmc  pro  tunc.^^  This  has 
been  allowed  after  the  cause  has  been  set  for  hearing,  and 
a  reference  ordered,^"*  and  also  after  the  cause  has  come 
on  for  hearing,  the  reading  of  proofs  begun,  and  even 
after  the  examination  of  witnesses.^^    Any  error  in  the 


United  States.  Replies  to  an- 
swers containing  set-offs  or  counter- 
claims shall  be  made  within  ten 
days  after  answer  filed,  unless  the 
court  extends  the  time;  defend- 
ants affected  by  set-offs  or  counter- 
claims in  the  answers  of  codefend- 
ants  have  ten  days  from  service 
on  them  or  their  solicitors  of  copy 
of  the  same,  which  service  should 
be  within  ten  days  after  answer 
filed.     Eq.  Rule  31. 

Under  former  Federal  Equity 
Rule  66,  if  an  answer  by  one  de- 
fendant was  sufficient,  it  should  be 
replied  to  within  the  time  limited, 
although  other  defendants  have  not 
answered.  Coleman  v.  Martin,  6 
Blatchf.  291,  F.  C.  2986  (C.  C. 
1868).  Under  the  same  rule,  how- 
ever, if  an  answer  was  filed  prior 
to  the  return  rule  day  of  the  bill, 
the  reply  should  be  made  on  or  be- 
fore the  rule  day  next  after  the  rtr- 
turn  rule  day.  Heymann  v.  Uhl- 
man,  3-4  Fed.  686  (C.  C.  1888). 

13.  Illinois.  Hurd  v.  Asherman, 
117  111.  501  (1886) ;  Jameson  v.  Con- 
way, 10  111.  231   (1848). 

Maryland.  Hall  v.  Claggett,  48 
Md.  223   (1877). 


Massachusetts.  Doody  v.  Pierce, 
9  All.   (Mass.)   141   (1864). 

Michigan.  Daly  v.  Hosmer,  102 
Mich.   392    (1894). 

New  Hampshire.  Rogers  v. 
Mitchell,  41  N.  H.  154  (1860). 

New  Jersey.  Gaskill  v.  Sine,  13 
N.  J.  E.  130  (1860). 

Virginia.  Dabney  v.  Preston's 
Admr.,  25  Gratt.  838  (1875). 

United  States.  United  States  v. 
Barber  Lumber  Co.,  119  Fed.  184 
(C.  C.  1908)  ;  Fisher  v.  Hayes,  6  Fed. 
76  (C.  C.  1881),  replication  filed 
without  leave  after  expiration  of 
proper  time  allowed  to  stand  nunc 
yro  tunc,  where  defendant  had  been 
given  full  protection;  Jones  v.  Brit- 
tan,  1  Woods  667,  F.  C.  7455  (C.  C. 
1872).  These  Federal  cases  were 
under  the  former  rules  and  do  not 
indicate  the  present  Federal  prac- 
tice, but  illustrate  general  chancery 
practice. 

And  see  cases  in  notes  10  and  11, 
Sec.  300,  ante,  p.  515,  regarding 
waiver  of  replication. 

14.  Smith  V.  West,  3  Johns  Ch. 
(N.  Y.)  363  (1818). 

15.  Massachusetts.  Doody  v. 
Pierce,  9   All.    (Mass.)    141    (1864). 


518 


EQUITY  PRACTICE 


replication  except   the   omission   of  the  names   of  any 
defendants  may  be  corrected  by  amendment. ^'^ 

§  303.  Withdrawal  of  replication.  Where  the  plaintiff 
has  tiled  a  replication  and  afterward  moves  to  set  tlie 
cause  for  hearing  on  bill  and  answer,  the  motion  will  be 
allowed  practically  as  a  matter  of  course.^"  If  a  plain- 
tiff by  mistake  files  a  replication  to  an  irregular  answer, 
he  may  be  allowed  to  withdraw  his  replication  and  move 
to  take  the  answer  from  the  files.^^    Leave  to  withdraw 


Micliigan.  Daly  v.  Hosmer,  102 
Mich.  392  (1S94>.  after  decree. 

New  Hampshire.  Rogers  v. 
Mitchell.  41  \.  H.  154  (1S60). 

New  Jersey.  Gaskill  v.  Sine,  13 
N.  J.  E.  130  (1860),  after  decree 
obtained  against  plaintiff  through 
his  inadvertence. 

Virginia.  Dabney  v.  Preston's 
Admr..  2-5  Gratt.  338  (1875). 

United  States.  Jones  v.  Brittan, 
1  Woods.  667,  F.  C.  7455  (C.  C. 
1872),  under  the  former  Federal 
rules. 

But  a  replication  cannot  be  filed 
after  the  plaintiff  has  voluntarily 
gone  to  hearing  on  bill  and  answer 
and  the  bill  has  been  dismissed. 
Snyder  v.  Martin,  17  W.  Va.  276, 
41  A.  R.  670  (ISSO);  Buliinger  v. 
Mackay,  14  Blatchf.  355,  F.  C.  2126 
(C.  C.  1877). 

Where  the  case  has  been  set  for 
hearing  on  bill,  answer  and  ex- 
hibits, but  no  proof  has  been 
taken,  the  plaintiff  cannot  put  in 
a  replication  except  by  consent  of 
court  or  defendant;  but  where 
proofs  have  been  taken,  he  can  put 
it  in  at  any  time,  nunc  pro  tunc, 
since  it  is  then  but  a  formality. 
Hall  V.  Claggett,  48  Md.  223  (1877). 
But  in  Davis  v.  Lang,  153  111.  175 
(1893),  a  replication  was  disregard- 
ed which  was  filed  without  leave 
of   court- 


In  Cushman  v.  Davis,  79  Vt.  Ill 
(1906 j,  a  replication  was  allowed 
by  the  court,  nunc  pro  tunc,  which 
was  filed  with  the  master  after  the 
ease  was  referred  to  him,  the  case 
having  gone  on  as  if  the  replica- 
tions were  properly  filed. 

Pendency  of  negotiations  for  a 
settlement  is  sufficient  excuse  for  a 
delay  in  filing  replication.  Robin- 
son V.  Randolph,  4  B.  &  A.  317, 
F.  C.  11,913  (C.  C.  1879). 

16.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  831. 

17.  Dascomb  v.  Marston,  80  Me. 
223,  230  (1888).  "By  filing  the  mo- 
tion, the  orators  must  be  held  to 
have  waived  their  replication,  other- 
wise the  respondents  can  neither 
have  the  benefit  of  their  answers 
as  true,  nor  a  chance  to  prove  them 
true,  and  would  be  deprived  of  their 
defence."  See  also  Brown  v.  Rick- 
etts,  2  Johns.  Ch.  (X.  Y.)  425 
(1817);  Rogers  v.  Goore,  17  Ves. 
130. 

18.  American  Ins.  Co.  v.  Bayard, 
3  Barb.  Ch.  (X.  Y.)  610  (1847). 

A  replication  must  be  withdrawn 
before  material  amendment  of  the 
bill.  Moshier  v.  Knox  College,  32 
111.  155  (1863);  Seymour  v.  Long 
Dock  Co..  17  X.  J.  E.  169  (1864). 
semble.  But  leave  to  withdraw 
replication  and  amend  bill  will  only 
be  granted  on  affidavit  against  vex- 


REPLICATIONS 


519 


the  replication  for  the  purpose  of  excepting  to  the  answer 
is  not  allowed  unless  for  special  cause  clearly  shown  and 
unless  the  plaintiff  satisfactorily  accounts  for  his 
nefflect.^^ 


ation  and  delay,  and  that  the 
amendment  is  material  and  no  lack 
of  diligence.  Appeal  of  Dougherty, 
;50  Leg.  Int.  312  (Pa.  1873); 
School  Dist.  V.  Thompson,  2 
Woodw.  Dec.  345   (Pa.  1872). 

In  Hampson  \.  Quayle,  12  E.  I. 
508  (1886),  a  plaintiff  was  allowed 
to  withdraw  a  general  replication 
to  a  plea  of  settlement,  in  order  to 
amend  his  bill  of  equity  for  an  ac- 
counting by  inserting  charges  that 
the  settlement  was  fraudulent, 
where  the  plaintiff  showed  good 
reasons   for   not   having   moved   so 


to  amend  his  bill  prior  to  his  filing 
of  the  replication. 

19.  Brown  v.  Ricketts,  2  Johns. 
Ch.  425  (1817).  In  this  case,  where 
three  months  had  elapsed  from  the 
time  of  filing  answer,  and  no  good 
cause  was  shown  for  the  delay,  the 
application  was  refused,  and  it  was 
held  also  that  a  replication  cannot 
be  withdrawn  for  the  purpose  of 
amending  the  bill,  unless  the  plain- 
tiff shows  the  materiality  of  the 
amendment  and  why  the  new  mat- 
ter offered  in  amendment  was  not 
before  stated  in  the  bill. 


CHAPTER  XVII 


AMENDING  BILLS 


§  304.  In  general — What  may  be  amended.  If  the 
plaintiff  after  he  has  filed  his  bill  finds  that  he  has  made 
any  eiTor  in  point  of  form,  or  has  omitted  to  state  any 
matter  or  to  join  any  person  as  party  to  the  suit  as 
he  ought  to  have  done,  he  may  supply  such  defect  by 
amending  his  bill  in  the  discretion  of  the  court  at  the 
proper  state  in  the  proceedings.^ 


In  general  it  may  be 


1.  In  Church  v.  Holeomb,  45 
Mieh.  40  (1880),  the  court  said: 
"The  limit  to  amendments  is  this: 
Thev  must  not  be  allowed  to  preju- 
dice the  substantial  rights  of  the 
defendant,  but  observing  due  cau- 
tion in  that  regard,  the  time  and 
the  extent  of  change  are  in  the 
discretion  of  the  court." 

The  following  are  some  examples 
of  what  amendments  will  be  al- 
lowed: 

To  amend  errors  in  form:  Bras- 
sington  v  Waldron,  143  ilich.  364 
(1906):  Dancel  v.  United  Shoe  Ma- 
chinerv  Co..  120  Fed.  S39  (1903). 

To  add  statements:  Henderson 
T.  Harness.  1S4  HI.  520  (1900); 
Cross  V.  Beane,  81  Me.  525  (1889) ; 
Saunders  v.  Frost,  5  Pick.  271 
(1828);  Carey  v.  Fulner.  74  Miss. 
729  (1897);  Manchester  v.  Hodge, 
73  X.  H.  617  (1906);  Kinney  v. 
Craig.  103  Va.  158  (1904);  Cox  v. 
National  Coal  4  Oil  Investment 
Co..  61  W.  Va.  291  (1907). 

To  make  allegations  more  def- 
inite:     White   V.    Poole.    73    X.   H. 


403  (1905);  Kelley  v.  Gwatkin.  108 
Va.  6  (1908). 

To  strike  out  unnecessary  aver- 
ments: Rice  V.  OXeal.  120  111. 
App.  259   (1905  . 

To  correct  mistakes:  McMann 
V.  Wescott,  47  Mich.  177  (1881); 
Boiler  T.  Murray,  107  Va.  527 
(1907);  Hall  v.  McGregor,  65  W. 
Va.  74  (1909^. 

To  conform  to  proof:  Hewitt  v. 
Dement,  57  111.  500  (1S70;;  Bacon 
V.  Conn,  S.  &  M.  Chancery  (Miss.) 
34S  (1846):  Bellows  v.  Stone.  14 
X.  H.  175  (1843);  Stevens  v.  Shaw. 
66  X.  J.  Eq.  116  (1904):  O'Connor 
V.  O'Connor,  20  B.  I.  256  (1S97): 
Patton  V.  Dixon,  105  Tenn.  97 
(1900);  Laskey  v.  Burrell.  107  Va. 
4S0  (1906);  BatlifF  v.  Sommers,  55 
W.  Va.  30  (19041. 

To  conform  to  a  cause  of  action 
disclosed  by  answer:  Commission- 
ers of  Highways  v.  Deboe.  43  HI. 
App.  25  (1891):  Gerrish  v.  Black. 
99  Mass.  315  (1868^:  Chalfants  v. 
Man  in.  25  W.  Va.  394  :  1SS4  . 

To  change  prayer  for  relief  or 


520 


AMENDING  BILLS 


521 


said  that  any  matter  may  be  thus  introduced  by  amend- 
ment provided  it  does  not  create  a  new  case  after  hear- 


insert  new  prayer  for  particular  re- 
lief or  a  prayer  for  general  relief 
when  no  demurrer  is  interposed: 
Loggie  V.  Chandler,  95  Me.  220 
(1901);  McCrum  v.  Lee,  38  W.  Va. 
583  (1893);  Hardin  v.  Boyd,  113 
U.  S.  756  (1884).  But  not  when 
facts  set  forth  would  not  authorize 
other  relief:  Halstead  v.  Meek- 
er's Exrs.,  18  N.  J.  Eq.  136  (1866). 

To  add  parties,  plaintiff  or  de- 
fendant: McGhee  v.  Alexander, 
104  Ala.  116  (1893);  Satterthwait 
V.  Marshall,  4  Del.  Ch.  337  (1872); 
Price  V.  Stratton,  45  Fla.  535 
(1903);  Marsh  v.  Green,  79  111.  385 
(1875);  McLellan  v.  Osborne,  51 
Me.  118  (1863);  Folkerts  v.  Power, 
42  Mich.  283  (1881);  Mclntyre  v. 
Easton  &  Amboy  E.  E.  Co.,  26  N.  J. 
Eq.  425  (1883);  Coffman  v.  Lang- 
ston,  21  Gratt.  (Va.)  263  (1871); 
Lovett  V.  Eastern  Oil  Co.,  68  W. 
Va.  667  (1911). 

To  strike  out  parties:  Eeybold 
et  al.  V.  Herdman,  Sheriff,  2  Del. 
Ch.  34  (1837);  Heaeock  v.  Durand, 
42  111.  230  (1866);  Dana  v.  Valen- 
tine, 5  Mete.  (Mass.)  8  (1842). 

To  substitute  parties:  Busiere 
V.  Eeilley,  189  Mass.  518  (1905); 
Inhab.  of  Winthrop  v.  Farrar,  11 
Allen  (Mass.)  398  (1865);  Vt.  Min- 
ing, etc.,  Co.  V.  Windham  County 
Bank,  44  Vt.  489  (1872).  But  see 
Keyser  v.  Eenner's  Admr.,  87  Va. 
249  (1890),  where  an  amended  bill 
was  not  allowed  to  be  filed  in  name 
of  assignee. 

To  transpose  parties:  MeDuffie 
V.  Sinnott,  119  111.  449  (1887); 
Hewitt  V.  Adams,  50  Me.  27 
(1861);  Smith  v.  Hadley,  64  N.  H. 
97    (1886);   Elmer  v.  Loper,  25  N. 


J.  Eq.  475  (1875);  Dare's  Admrs. 
V.  Allen's  Exr.,  2  N.  J.  Eq.  288 
(1838).  But  parties  will  not  be 
transposed  at  their  mere  caprice, 
as  for  instance  to  enable  a  party 
to  remove  his  case  to  a  Federal 
court.  Burlew  v.  Quarrier,  16  W. 
Va.  108   (1880). 

To  change  capacity  in  which 
plaintiff  sues  or  defendant  is  sued: 
Leahy  v.  Haworth,  141  Fed.  850, 
73  C.  C.  A.  84  (1905). 

The  court  is  without  authority 
to  permit  amendments  to  supply  ju- 
risdictional averments  in  the  bill. 
Dickinson  v.  Consolidated  Traction 
Co.,  114  Fed.  232  (1902);  Livey  v. 
Winton,  30  W.  Va.  554  (1887). 
But  see  Ellsworth  v.  Cook,  8  Paige 
(N.  Y.)  642  (1841). 

The  court  will  take  notice  of 
want  of  parties  and  allow  amend- 
ment, even  if  no  objection  is  made: 
Dekle  v.  Barcley,  48  Fla.  250 
(1904);  Case  v.  Minot,  158  Mass. 
577  (1893);  Beals  v.  Cobb,  51  Me. 
348   (1863). 

A  bill  that  is  multifarious  may 
be  amended  to  obviate  that  objec- 
tion: Emerson  v.  Gaither,  103  Md. 
564  (1906);  Weyman  v.  Thompson, 
50  N.  J.  Eq.  8  (1892) ;  Eose  v.  Eose, 
11  Paige  (N.  Y.)  166  (1844).  And 
an  amendment  is  not  allowed  if  it 
would  make  the  bill  multifarious. 
Linn  v.  Patton,  10  W.  Va.  187,  202 
(1877). 

Amendments  of  a  sworn  bill  are 
not  a  matter  of  right,  but  may  be 
allowed  upon  afi&davit  of  reason- 
able excuse  to  prevent  failure  of 
justice:  Bauer  v.  Zelle,  172  111. 
407  (1898).  Although  allowed  with 
great    caution:      Eobinson    v.    Mc- 


522 


EQUITY  PRACTICE 


ing,-  and  in  most  jurisdictions  it  makes  no  difference 
whether  an  amendment  introduces  new  matter  which  has 
occurred  since  the  filing  of  the  bill,^  or  adds  new  parties 


Kenney,  239  111.  343  (1909);  Ver- 
planck  V.  Mercantile  Ins.  Co.,  1 
Edw.  (N.  Y.)  46  (1831);  Laskey  v. 
Burrill,  105  Va.  480,  485  (1906). 
See  London  Mills  v.  White,  208  111. 
289  (1904),  for  circumstances  un- 
der which  excuse  need  not  be 
shown.  A  rule  permitting  amend- 
ments of  course  before  answer,  plea 
or  demurrer  does  not  include  a 
sworn  bill.  Parker  v.  Grant,  1 
Johns.  Ch.  (N.  Y.)  434  (1814). 

A  sworn  bill  may  sometimes  be 
amended  by  adding  averments 
which  do  not  contradict  those  in 
the  bill:  Marble  v.  Bonhotel,  35 
111.  240   (1864);  Michigan  Rule  16. 

But  not  by  striking  out  aver- 
ments, unless  under  special  circum- 
stances such  as  mistake.  North 
Biver  Bank  v.  Rogers,  8  Paige  (X. 
Y.)   647   (1841). 

Proposed  amendments  to  sworn 
bills  must  be  under  oath.  Gregg  v. 
Brower,  67  111.  525  (1873);  Rogers 
V.  DeForest,  3  Edw.  (N.  Y.)  171 
(1840);  Michigan  Rule  16.  Unless 
they  relate  purely  to  matters  of 
form,  and  no  statement  of  fact  is 
added.  Farnsworth  v.  Whiting, 
104  Me.  488   (1909). 

In  some  states  no  amendment  in 
a  matter  of  substance  is  allowed 
as  of  course  to  any  bill  which  has 
been  sworn  to.  See  Florida  G.  S., 
Art.  4,  Sec.  1867;  Massachusetts 
Equity  Rule  18. 

Amendments  to  sworn  bills  are 
more  readily  allowed  when  sworn 
to  by  agent  or  attorney.  Thomas 
V.  Coultas,  76  111.  493  (1875). 

2.  Even  a  new  cause  may  be  in- 
troduced by  amendment,  provided 


it  is  offered  before  issue  joined, 
and  there  is  some  authority  to  the 
effect  that  this  may  be  done  in  the 
case  of  infants,  even  at  a  later 
stage.     See  Sec.  305,  post,  p.  526. 

3.  Where  a  pleading  states  a 
fact  which  existed  when  the  origi- 
nal suit  was  brought,  it  is  in  that 
respect  an  amendment,  but  if  it 
states  a  fact  which  came  into  ex- 
istence after  the  original  bill  was 
filed,  it  is  in  that  respect  a  supple- 
mental bill;  but  whether  the  one 
or  the  other  great  liberality  is  al- 
lovyed  in  practice  in  the  amendment 
of  pleading  when  the  ends  of  jus- 
tice are  to  be  promoted  by  it. 
Glenn  v.  Brown,  99  Va.  322  (1901). 

Facts  occurring  after  the  filing 
of  a  bill  which  make  good  the 
plaintiff's  cause  of  action  may  be 
pleaded  by  amendment.  Luft  v. 
Gossran,  31  111.  App.  530  (1888); 
Hill  V.  Fuller,  188  Mass.  195 
(1905);  Blaisdell  v.  Stevens,  16  Vt. 
179  (1845);  Hanby's  Admr.  v. 
Henritze's  Admr.,  85  Va.  177 
(1888);  Harvey  v.  Lord,  11  Biss. 
(U.  S.)  144  (1882).  Contra,  Ham- 
mond V.  Place,  Harr.  (Mich.)  438 
(1842).  But  the  plaintiff  cannot 
amend  by  adding  new  facts  hap- 
pening after  the  filing  of  the  bill 
which  make  a  cause  of  action  when 
none  existed  before.  Bannon  v. 
Comegy's  Admr.,  69  Md.  411 
(1888);  Wright  v.  Frank,  61  Miss. 
32  (1883);  Kryptok  Co.  v.  Hauss- 
man  &  Co.,  216  Fed.  267  (1914); 
Mellor  V.  Smither,  114  Fed.  116,  52 
C.  C.  A.  64   (1902). 

In  Birmingham  v.  Lesan,  77  Me. 
494  (1885),  it  was  held  that  though 


AMENDING  BILLS 


523 


on  account  of  the  death  of  any  of  those  who  were  first 
made  parties,  since  by  chancery  rule  the  distinction 
between  amendments,  supplemental  bills  and  bills  of 
revivor  has  in  general  been  abolished.^  But  it  is  held  that 
an  amendment  will  not  be  allowed  where  it  is  evident  to 
the  court  that  the  plaintiff  would  not  have  a  good  cause 


generally  matters  which  have  oc- 
curred since  the  filing  of  the  origi- 
nal bill  can  only  be  introduced  by 
a  supplemental  bill,  yet  in  the  lan- 
guage of  the  court  in  Pinch  v.  An- 
thony, 10  Allen  (Mass.)  470 
(1865),  "We  know  of  no  case  that 
goes  so  far  as  to  authorize  a  party 
who  has  no  cause  of  action  at  the 
time  of  filing  his  original  bill,  to 
file  a  supplemental  bill  in  order  to 
maintain  his  suit  upon  a  cause  of 
action  that  accrued  after  the  origi- 
nal bill  was  filed,  even  though  it 
arose  out  of  the  same  transaction 
that  was  the  subject  of  the  origi- 
nal bill."  To  such  a  case  there- 
fore chancery  rules  allowing 
amendments  to  serve  the  purpose 
of  supplemental  bills  would  not 
apply,  since  it  is  not  a  case  where 
a  supplemental  bill  can  be  used, 
and  therefore  not  a  case  where  it 
could  be  accomplished  by  an 
amendment  in  place  of  such  supple- 
mental bill. 

Facts  existing  before  the  filing 
of  the  bill  but  only  discovered 
later  can  be  introduced  by  amend- 
ment if  not  inconsistent  with  the 
bill.  Jefferson  v.  Kennard,  77  111. 
246  (1875);  Supreme  Lodge  v.  Hin- 
sey,  241  111.  384  (1909);  Briggs  v. 
Briggs,  20  Mich.  34  (1870);  Har- 
die  V.  Bulger,  66  Miss.  577  (1889); 
Hobson  V.  Hobson,  105  Va.  394 
(1907);  Anthony  v.  Campbell,  112 
Fed.  212  (1902). 


Where  the  plaintiff  was  without 
capacity  to  sue  when  the  original 
bill  was  filed,  and  the  capacity  was 
afterwards  acquired,  the  want  of 
capacity  being  such  that  the  de- 
fendant could  have  waived  it,  the 
plaintiff  was  allowed  to  amend. 
Buck  V.  Buck,  11  Paige  (N.  Y.) 
170  (1844).  When  plaintiff's  right 
is  inchoate  when  bill  is  filed,  he 
may  by  amendment  show  its  con- 
summation. Grist  V.  Forehand,  36 
Miss.  69  (1858);  Totten  v.  Nigh- 
bert,  41  W.  Va.  800  (1896). 

Omission  to  state  in  the  original 
bill  facts  known  at  the  time  will 
be  considered  as  bearing  on  their 
truth,  where  they  are  sought  to  be 
set  up  in  amendment.  Calkins  v. 
Calkins,  220  111.  Ill  (1906). 

In  McEwen  v.  Gillespie,  71  Tenn. 
204  (1879),  the  plaintiff  was  not 
allowed  to  amend  after  demurrer 
sustained  where  facts  were  pre- 
viously known. 

4.  See  Alabama  Eule  45;  Maine 
Eule  21;  Massachusetts  Rule  25; 
Pennsylvania  Rule  53;  Rhode  Is- 
land, G.  S.,  Ch.  289,  Sec.  11,  Rule 
10;  Vermont  Rule  11;  U.  S.  Eq. 
Rule  19  (1913). 

In  Mix  v.  Beach,  46  111.  311 
(1867),  it  was  held  that  a  supple- 
mental bill  was  in  effect  an  amend- 
ment by  which  new  matter  which 
had  transpired  since  the  filing  of 
the  original  bill  was  brought  into 
the  case  and  therefore  the  defend- 
ant need  not  be  summoned  again. 


524 


EQUITY  PRACTICE 


of  action  even  if  the  requested  amendment  were  made.^ 
§  305.  Chang:ing  the  cause  of  action.  Amendments 
changing  the  ground  of  action  will  be  allowed  before  the 
cause  is  at  issue,"^  but  the  plaintiff  will  rarely  if  ever  be 
peiinitted  to  introduce  a  new  cause  of  action  by  amend- 
ment after  issue  joined,  or  after  the  cause  is  set  for  hear- 
ing: and  much  less  after  it  has  been  heard."  To  strike 
out  the  entire  substance  and  prayer  of  a  bill  and  insert 
a  new  case  by  way  of  amendment,  leaves  the  record 
unnecessarily  encumbered  with  the  original  proceedings, 
increases  expenses  and  complicates  the  suit.  It  is  far 
better   to   require    the   plaintiff   to    begin   anew.-     But 


5.  Edgoll  V.  Smith,  50  W.  Va. 
349  (1901). 

6.  SevmooT  v.  Long  Doek  Co.,  17 
N.  J.  Eq.  169,  171  (ISW^;  Coding- 
ton V.  Mott,  li  X.  J.  Eq.  430 
(1862). 

7.  Alabama.  MoKinley  t.  Ir- 
vine, 13  Ala-  6S1  (1S4S). 

Maine.  Hewitt  v.  Adams.  50  Me. 
271  (1S62  >. 

Maryland.  Coekey  v.  Plempell. 
86  Md.  ISl  (1S97':  Watson  v.  God- 
win, 4  Md.  Ch.  25  (1851). 

Massachusetts.  Homer  v.  Hor- 
ner, 107  Mass.  82  (1871^:  Pratt  v. 
Baeon.  10  Pick.  123   (1830). 

Michigan.  Livingston  v.  Hayes, 
43  Mich.  129  (ISSOU 

MississippL  Wright  v.  Frank, 
61  Mi55.   S2     1?S3  . 

New  Hampshire.  Hall  v.  Cong- 
don.  ■"'>  X.  H.  279  (1875). 

New  Jersey.  Berla  v.  Straus,  74 
N'.  J.  Eq.  678  (190S);  Carter  v. 
Carter.  63  X.  J.  Eq.  726  (1902>. 

New  York.  Lyon  v.  TaUmadge, 
1  Johns.  Ch.  184  (1814). 

Pennsyl'Tania.  Wilhelm  's  Ap- 
peal. 79  Pa.  St.  120  (1875). 

Rhode     Island.     Commerce     Na- 


tional Bank  v.  Smith.  24  Atl.  469 
(1892). 

Tennessee.  Tappan  v.  Western, 
etc..  B.  Co.,  71  Tenn.  106  (1879). 

Vermont.  Lynch 's  Admr.  v. 
Murray,  81  Vt,  97  (1906). 

Virginia.  Kinney  v.  Craig,  103 
Va.  loS  (\90i^. 

West  Virginia.  Xewton  v.  Kem- 
per, 66  W.  Va.  130  (1909);  Chris- 
tian V.  Vance,  41  W.  Va.  755 
(LS95'. 

United  States.  Walden  v.  Bod- 
ley,  14  Peters  (U.  S.)  156,  160,  10 
L.  ed.  398  (1840). 

8.  Shields  v.  Barrow.  17  How.  130 
(1854).  As  to  what  constitutes  a 
new  cause  of  action,  it  was  held 
in  Pratt  v.  Bacon,  10  Pick.  123 
(1830),  in  a  bill  between  members 
of  manufacturing  corporations 
seeking  an  account  of  the  corpo- 
rate property,  that  an  amendment 
setting  forth  facts  tending  to  show 
a  dissolution  of  the  corporation 
would  not  be  allowed  as  making  a 
new  cause  of  action. 

In  Hill  V.  Hill,  53  Vt.  578  (1881), 
the  plaintiff  brought  a  bill  to  re- 
deem mortgages  which  he  set  up  as 
valid,  and  later  attempted  to  amend 


AMENDING  BILLS 


525 


it  is  said  that  this  may  be  done  in  the  case  of  infant 


by  claiming  mortgages  were  void 
on  account  of  mental  incompe- 
tency of  mortgagor.  It  was  held 
that  the  amendment  was  not  valid 
as  it  set  up  a  new  cause  of  action. 

A  bill  for  partition  of  land 
which  ignores  a  sale  of  the  land 
cannot  be  amended  to  recover  the 
money  obtained  thereby  even 
though  the  plaintiff  might  be  en- 
titled thereto,  since  this  is  making 
a  new  cause  of  action.  Hurt  v. 
Jones,  75  Va.  341   (1881). 

The  plaintiff  cannot  amend  by 
substituting  a  declaration  at  law. 
Homer  v.  Homer,  107  Mass.  82 
(1871).  But  in  Pullen  v.  Hutchin- 
son, 25  Me.  249  (1845),  it  was  held 
that  "A  declaration  so  defective 
that  it  would  exhibit  no  sufficient 
cause  of  action  may  be  cured  by 
an  amendment  without  introduc- 
ing any  new  cause  of  action.  This 
is  often  the  very  purpose  of  the 
law  authorizing  amendments." 
Courts  of  equity  are  more  liberal 
in  allowing  amendments  than 
courts  of  law.  Hewitt  v.  Adams, 
50  Me.  271  (1862).  Here  the  plain- 
tiff claimed  a  liability  against  the 
stockholders  to  the  amount  of  their 
stock  but  stated  no  specific  ground 
for  that  liability,  and  an  amend- 
ment was  allowed  alleging  loss  by 
the  official  mismanagement  of  the 
directors,  as  being  in  the  nature 
of  a  specification  of  the  claim. 

In  Berla  v.  Straus,  74  N.  J.  E.  678 
(1908),  it  was  held  that  a  bill  to 
enforce  a  resulting  trust  could  not 
be  amended  into  a  bill  to  settle 
partnership  accounts. 

In  Drew  v.  Beard,  107  Mass.  64, 
76  (1871),  it  was  held  that  "The 
court  has  power  to  allow  pmend- 
ments   in   any   matter    of   form   or 


substance  which  may  enable  the 
plaintiff  to  sustain  the  action  for 
the  cause  for  which  it  was  intend- 
ed to  be  brought,"  citing  Bank  v. 
Stevenson,  7  Allen  489  (1863). 
"In  the  ease  at  bar  it  is  unreason- 
able to  doubt  that  the  plaintiff, 
when  he  brought  his  action,  in- 
tended to  include  in  it  the  cause 
of  action  set  forth  in  the  proposed 
amendment.  It  is  a  question  there- 
fore of  discretion  whether  under 
the  circumstances  of  the  case  the 
amendment  should  be  allowed. ' ' 

In  Hall  V.  Congdon,  56  N.  H. 
279  (1875),  a  bill  alleging  an  ex- 
press trust  was  allowed  to  be 
amended  by  adding  facts  from 
which  an  implied  trust  could  be 
inferred. 

A  bill  to  enjoin  moving  a  frame 
house  on  the  ground  of  infringe- 
ment of  certain  conditions  imposed 
by  ordinance  was  allowed  to  be 
amended  to  allege  infringement  of 
certain  other  conditions  of  the 
ordinance.  Patterson  v.  Johnson, 
214  111.  481   (1905). 

A  bill  for  a  sale  of  land  in  which 
an  infant  has  an  interest  may  be 
amended  into  a  bill  for  a  partition. 
Watson  V.  Godwin,  4  Md.  Ch.  25 
(1851). 

A  bill  by  one  tenant  in  common 
for  the  appointment  of  a  receiver, 
because  of  his  exclusion  from  the 
possession  of  enjoyment  of  the 
land  held  in  common,  may  be 
amended  so  as  to  contain  a  prayer 
for  partition.  Bilder  v.  Eobinson, 
73  N.  ,1.  Eq.  169   (1907). 

In  Wilhelm's  Appeal,  79  Pa. 
120  (1875)  a  bill  for  an  account- 
ing of  ores  taken  from  a  tenancy 
in  common,  which  described  the 
premises     held     in     common,     was 


526 


EQUITY  PRACTICE 


plaintiffs,^  since  the  court  considering  infants  as  particu- 
larly under  its  protection,  will  not  permit  an  infant  plain- 
tiff to  be  injured  by  the  manner  in  which  his  bill  has 
been  framed. ^^' 

§  306.  When  amendments  may  be  allowed.  The  allow- 
ance of  amendments  at  any  time  before  final  decree  is 
entered  in  the  cause  is  generally  held  to  be  discretionary 
with  the  court,"  and  the  exercise  of  this  discretion  by 


amended  by  charging  that  ores 
were  taken  outside  the  limits  of 
what  had  been  described  in  the 
bill  as  the  common  property,  and 
asking  on  account  co-extensive 
with  what  the  court  should  de- 
cide from  the  title  set  forth  to  be 
a  tenancy  in  common.  The  court 
held  that  the  amendment  did  not 
allege  a  new  cause   of  action. 

In  Confectioners'  Machinery  and 
Manufacturing  Co.  v.  Racine  En- 
gine and  Machinery  Co.,  163  Fed. 
914  (1908)  a  bill  to  enjoin  the 
infringement  of  a  patent  was 
brought  by  a  Massachusetts  cor- 
poration which  had  succeeded  an- 
other corporation  of  the  same  name 
but  organized  under  the  laws  of 
Delaware.  By  mistake  the  cor- 
poration was  described  in  the  bill 
as  a  Delaware  corporation.  It  was 
held  that  an  amendment  to  con- 
form to  the  true  facts  brought 
out  by  the  evidence  did  not  make 
a  new  cause  of  action,  but  merely 
corrected  a  mistake  of  fact. 

In  an  action  for  specific  per- 
formance of  a  contract  for  the  sale 
of  land,  the  contract  set  out  in 
the  bill  described  the  land  as  be- 
longing to  another  than  the  de- 
fendants, and  an  amendment  even 
after  issue  joined  was  allowed, 
upon  payment  of  taxable  costs  up 
to  that  time,  alleging  that  the 
contract    set    out    did    not    express 


the  real  agreement,  and  asking  to 
have  it  reformed  and  then  speci- 
fically enforced.  Fearey  v.  Hayes, 
44  X.  J.  Eq.  425  (1888).  So  a 
bill  seeking  a  cancellation  of  an 
agreement  to  sell  land  and  general 
relief  may  be  amended  after  hear- 
ing by  asking  that  a  vendor's  lien 
be  declared.  Hardin  v.  Boyd, 
113  U.  S.  756,  28  L.  ed.  1141  (1889). 
A  bill  amended  by  narrowing  the 
prayer  for  relief  does  not  make  an 
entirely  new  case.  Fisher  v.  Yil- 
lamie,  62  So.  481  (Fla.  1913). 

9.  Seymour  v.  Long  Dock  Co., 
17  X.  .7.  Eq.  169  (1864). 

10.  Story's  Eq.  PI.  (10th  ed.) 
Sec.  892. 

11.  Koch  V.  Roth,  150  111.  212 
(1S94);  Booth  v.  Wiley,  102  111. 
84  (1881) ;  Filston  Farm  Co.  v.  Hen- 
derson, 106  Md.  335  (1907);  Strout 
V.  United  Shoe  Machinery  Co.,  102 
X.  E.  312  (Mass.  1913);  Grange 
Ware  House  Association  v.  Owen, 
86  Tenn.  355  (1888);  Branch 
V.  Buckley,  109  Va.  784  (1888); 
Dudley  V.  G.  W.  Xiswander  Co., 
65  W."  Va.  461  (1909);  Radcliff  v. 
Sommers,  55  W.  Va.  30  (1904). 

In  Alabama,  amendment  must  be 
allowed  when  offered  at  any  time 
beforf  final  decree.  Alabama  Code, 
See.  3126. 

Although  the  court  may  suggest 
or  even  direct  an  amendment,  it 
cannot    ex    vxero    moiu    amend    the 


AMENDING  BILLS  527 

the  court  is  not  subject  to  review  upon  exceptions. ^^ 
§  307.  Amendments  before  issue.  In  many  jurisdic- 
tions, where  the  proposed  amendment  is  before  issue  and 
is  not  an  amendment  as  to  parties,  it  is  allowed  as  a  matter 
of  course;  that  is,  it  need  not  be  brought  to  the  attention 
of  the  court  at  all,  but  is  simply  filed  and  entered  on  the 
docket  by  the  clerk  without  question.^^  The  words 
"before  issue"  in  the  rules  mean  before  issue  is  tendered 
by  filing  a  demurrer,  plea  or  answer. 

§  308.  Amendments  after  issue  on  demurrer,  plea  or 
answer.  While  courts  generally  have  the  express  power 
to  allow  any  amendment  they  see  fit  at  any  time  before 
final  decree,  yet  they  will  be  somewhat  influenced  and 
guided  in  the  exercise  of  their  discretion  by  the  conduct 
of  other  courts  under  like  circumstances;  so  that  an 
examination  of  the  decisions  as  to  the  allowance  of  amend- 
ments at  each  stage  of  the  proceedings  may  prove  of 
value.  After  a  demurrer  is  filed,  and  even  after  a 
demurrer  is  sustained  whether  for  a  formal  defect  or  for 

pleadings    or    eliminate    any    part  New    Jersey.     Seymour   v.    Long 

thereof.     Caldwell  v.  King,  76  Ala.  Dock  Co.,  17  N.  J.  Eq.  169  (1864); 

149   (1884).  Codington  V.  Mott,  14  N.  J.  Eq.  430, 

12.  Gilpatrick  v.  Glidden,  82  Me.  432  (1862). 

202    (1889).      The   reason   for   this  Virginia.     Rowland    v.    Trotter, 

is    that    exceptions    challenge    the  22  Grat.  136  (1872). 

authority    and    not    the    discretion  And    see   Ala'.    Code,    Sec.    3124; 

of  the  court.     Consequently  where  Fla.  Eule  41;  Mass.  Eule  18;  Mich. 

it   is   claimed  that   there   has  been  Eule    16;    N.    J.    Eule    66    (before 

an   abuse   of   discretion   an    appeal  subpoena);  Pa.  Eule  48;  E.  I.  Eule 

should    be    taken.      See    Nelson    v.  8;  U.  S.  Eq.  Eule  28. 

Eandolph,     222     111.     531     (1906);  Under  Eule   16   of  Michigan  au- 

Gilpatrick   v.   Glidden,   supra    {sem-  thorizing  an  amendment  to  a  bill  at 

hie).  any     time     before     plea,     answer 

13.  Before  issue  the  plaintiff  may  or  demurrer  is  put  in,  with- 
vary  his  case  in  any  way  he  out  leave  of  court,  a  bill  may  be 
pleases,  however  inconsistent  with  amended  in  a  pro  confesso  case 
or  repugnant   to   the   original   bill.  after  the  time  limited  for  appear- 

Illinois.  Droullard  v.  Baxter,  2  ance.  Bowers  v.  Chippewa  Circuit 
111.  191  (1835).  Judge,  136  Mich.  367   (1904). 

Michigan.  Bowers  v.  Chippewa 
Circuit  Judge,  136  Mich.  367 
(1904). 


628 


EQUITY  PRACTICE 


want  of  equity,  amendments  will  be  readily  allowed  by 
the  court  on  pajTQent  of  costs."     So  under  the  modern 


14.  niinois.  Heacock  v.  Durand, 
42  111.  230  (1866)  (after  demurrer 
sustained). 

Maryland.  Keerl  v.  Keerl,  28 
Md.  157  (^1868)  (at  the  hearing  of 
demurrer) ;  Eoser  v.  Slade,  3  Md. 
Ch.  91  (1851);  CuUison  v.  Bossum, 
1  Md.  Ch.  95  (1847). 

Massachusetts.  Merchant 's 
Bank  v.  Stevenson,  7  Allen  489 
(1863)  (plaintiff  given  reasonable 
time  to  amend  after  demurrer  su- 
stained). 

Michigan.  Bigelow  v.  Sanford, 
98  Mich.  657  (1894),  (on  sustain- 
ing special  demurrer). 

Mississippi.  Hiller  v.  Cotton,  48 
Miss.  593  (1873)  (after  demurrer 
sustained). 

New  Hampshire.  Manchester  v. 
Hodge,  73  X.  H.  617  (1906),  (after 
hearing  demurrer  but  before  rul- 
ing)- 

New  York.  Cunningham  v.  Pell, 
6  Paige  655   (1837). 

Tennessee.  Jefferson  v.  Gaines, 
66  Tenn.  368  (1874)  (after  demur- 
rer sustained). 

Vermont.  Xoves  v.  Sawyer,  3 
Yt.  160  (1831)  (after  demurrer 
sustained). 

Virginia,  Tidbull-  v.  Shenan- 
doah National  Bank,  98  Va.  768 
(1900)    (on   hearing   of   demurrer). 

United  States.  Crown  &  Co.  v. 
Bettis  &  Co.,  206  Fed.  362  (1913) 
(pending  demurrer) ;  Edward  P. 
Allis  Co.  V.  Withlacoochee  Lumber 
Co.,  105  Fed.  680  (1901),  (discre- 
tionary) ;  United  States  v.  Ather- 
ton.  102  U.  S.  372,  26  L.  ed.  213 
(1880). 

See  also  Fla.  Rules  42.  52:  Md. 
Eule    21    and    Code,   Art.    16,    Sec. 


152;  Pa.  Bules  35,  49;  B.  I.  Eule  9; 
Tennessee,  Code,  Sees.  6136,  6207; 
Vermont  Rule  17.  In  some  states, 
amendment  is  allowed  after  de- 
murrer for  a  defect  which  does 
not  go  to  the  equity  of  the  bill. 
Mass.  Rule  19;  Mich.  Rule  16;  N. 
J.  Rule  70.  But  an  amendment  is 
not  allowed  to  make  an  entirely 
new  cause  after  a  demurrer  to  the 
whole  bill  has  been  sustained. 
Merchants,  etc.,  Trust  Co.  v.  New 
Phila.,  etc.,  Co.,  87  Atl.  1022  (Del. 
1913). 

The  plaintiff  cannot  amend  to 
make  a  new  case  with  new  parties. 
March  v.  Mayers,  85  111.  177 
(1877). 

Where  a  bill  contains  claims 
some  of  which  are  inequitable  and 
others  equitable,  but  defectively 
stated,  the  demurrer  should  be 
sustained  to  the  former  and  amend- 
ments allowed  to  the  latter.  Look- 
out Bank  v.  Susong,  90  Tenn.  590 
(1891);  Morgan  v.  Morgan,  42  W. 
Va.  542   (1896). 

In  Alabama,  before  motions  to 
dismiss  for  want  of  equity  were 
abolished  by  Code  of  1907,  Sec. 
3121,  it  -roes  held  that  no  amend- 
ment could  be  made  after  such  a 
motion  sustained.  Edens  v.  Mur- 
free,  142  Ala.  617  (1904);  Turner 
v.  Mobile,  135  Ala.  73,  130  (1902); 
Hooper  v.  Savannah,  etc.,  R.  Co., 
69  Ala.  529  (1881). 

Mass.  R.  L.,  Ch.  173,  Sec.  48,  is 
applicable  to  permit  the  court  of 
equity  to  exercise  its  discretion 
in  regard  to  permitting  the  amend- 
ment of  bills.  Strout  v.  United 
Shoe,  etc.,  Co.,  102  N.  E.  312  (Mass. 
1913). 


AMENDING  BILLS 


529 


practice  in  many  jurisdictions,  where  a  plea  has  been 
sustained,  the  plaintiff  will  be  permitted  to  amend  his 
bill.^°  After  an  answer  is  filed  and  the  cause  set  for  hear- 
ing upon  bill  and  answer,  an  amendment  will  be  allowed 
if  it  is  in  furtherance  of  justice,  on  such  terms  as  will  not 
prejudice  the  defendant. 

It  would  seem  that  in  any  of  the  above  cases  where  the 
effect  of  an  amendment  of  the  bill  would  be  to  render  the 
defensive  pleading  filed  inapplicable,^^  the  amendment 


After  issue,  matter  inconsistent 
with  or  repugnant  to  the  substan- 
tive allegations  of  the  original  bill 
cannot  be  introduced  by  amend- 
ment. Ogden  V.  Moore,  95  Mich. 
290  (1893). 

15.  See  Chapter  XII,  "Pleas," 
Sees.  256,  257,  ante,  pp.  442,  443. 

In  Tompkins  v.  Hollister,  60 
Mich.  470  (1886),  it  was  held  that 
the  allowance  of  an  amendment  to 
a  bill  after  a  plea  has  been  filed, 
has  the  effect  of  admitting  the 
validity  of  the  plea,  but  the  amend- 
ed bill  standing  in  the  place  of  a 
new  bill  supersedes  the  plea  and  the 
defendants  have  the  same  time  to 
plead,  demur  or  answer  to  the 
amended  bill. 

16.  Long  V.  Anderson,  48  Fla. 
279  (1904),  (if  no  replication 
filed) ;  Brassington  v.  Waldron, 
143  Mich.  364  (1906).  But  see 
Springfield  Co.  v.  Ely,  44  Fla.  319 
(1902);  Clark  v.  Hull,  31  Miss. 
520  (1856);  Ogden  v.  Thornton,  30 
N.  J.  Eq.  569  (1879);  Midmer  v. 
Midmer,  26  N.  J.  Eq.  299  (1875); 
Eakin  v.  Hawkins,  48  W.  Va.  364 
(1900);  Tremaine  v.  Hitchcock,  23 
Wall.  518,  23  L.  ed.  97  (1874). 

See  Florida,  Rule  42;  Maryland, 
Rule  29;  Massachusetts,  Rule  20; 
Michigan,  Rule  16;  Pennsylvania, 
Rule  49;  Rhode  Island,  Rule  9. 

Whitehouse  E.  P.  Vol.  1 — 34 


It  is  sometimes  provided  by 
chancery  rule  that  where  such 
amendment  is  allowed  and  new 
facts  are  introduced  or  the  case 
varied  in  any  material  respect,  the 
defendant  shall  be  at  liberty  to 
answer  anew  or  to  plead  or  demur 
to  the  bill  as  amended  within  the 
time  set  by  the  court.  Maryland, 
Rule  30  (after  notice  of  amend- 
ment) ;  New  Hampshire,  Rule  95 
(three  weeks  after  amendment  de- 
livered to  defendants'  solicitor); 
Pennsylvania,  Rule  51;  Rhode 
Island,  Rule  25;  United  States,  Eq. 
Rule  32  (1913)  (10  days  after 
amendment  filed).  See  also  Massa- 
chusetts, Rule  20,  and  Alabama 
Code,  Sec.  3128. 

If  a  new  answer  is  required, 
plaintiff  must  pay  costs.  New 
Jersey,  Eq.  Rule  68. 

Where  plaintiff  amends  his  bill 
after  defendants '  default  is  en- 
tered, it  has  the  effect  of  setting 
the  default  aside  and  defendant 
has  a  right  to  answer  the  amended 
bill.  Lyndon  v.  Lyndon,  69  111. 
43  (1873). 

A  bill  and  its  amendments  con- 
stitute but  one  record.  Munch  v. 
Shabel,  37  Mich.  166  (1877). 

Unless  the  original  bill  is  strick- 
en out  when  an  amended  bill  is 
filed,    on    demurrer    both    will    be 


530 


EQUITY  PRACTICE 


should  be  allowed  with  more  hesitation  and  only  on  such 
terms  as  would  be  just  to  defendant. 

§  309.  Amendments  after  replication.  After  issue 
joined  on  replication  and  before  the  taking  of  testimony, 
the  plaintiff  will  be  permitted  to  withdraw  his  replication 
and  amend  his  bill  as  his  case  may  require.^' 

When  it  is  intended  to  amend  a  bill  after  a  replication 
filed,  by  the  addition  of  new  facts  or  charges,  the  proper 
course  is  to  ask  for  leave  to  withdraw  the  replication  and 
amend.  The  materiality  of  the  amendment  and  the  reason 
why  it  was  not  stated  before  must  be  shown  and  satis- 
factorily explained. ^^ 

§310.  — After  master's  report.  Amendments  of  a  bill 
in  equity  are  allowed  by  the  court  with  more  hesitation 
after  the  facts  have  been  found  and  reported  by  a  master. 


treated  as  constituting  one  bill  of 
complaint.  Brackin  v.  Newman, 
121  Ala.  311  (1899). 

A  demurrer  cannot  be  taken  to 
the  "amendment''  of  a  bill  but 
only  to  "a  bill  as  amended."  The 
amendment  need  not  state  a  cause 
of  action  apart  from  the  rest  of  the 
bill.  Hodges  v.  Verner,  100  Ala. 
612  (1892). 

But  where  an  answer  has  been 
made  to  the  original  bill  and  an 
amended  bill  is  fileil  making  a  new 
cause  of  action,  the  answer  to  the 
original  bill  does  not  preclude  the 
defendant  from  filing  a  demurrer 
to  the  amended  bill  and  the  effect 
of  sustaining  the  demurrer  to  the 
latter  will  be  to  dismiss  it  and  leave 
the  original  bill  still  standing. 
Wirtz  V.  Guthrie,  87  Atl.  134  (X.  J. 
Ch.  1913):  State  v.  Mitchell,  104 
Tenn.  336  (1899). 

17.  Seymour  v.  Long  Dock  Co., 
17  X.  .7.  Eq.  169,  171  (1865);  Thorn 
V.  Germand,  4  Johns.  Ch.  (X'^.  Y.) 
363   (1820). 


The  plaintiff  can  amend  by  add- 
ing parties  without  withdrawing 
replication.  Brattle  v.  Waterman, 
4  Sim.  12.3. 

In  some  states  by  chancery  rule 
the  plaintiff  can  withdraw  a  repli- 
cation only  on  special  order  of 
court,  after  due  notice  and  the 
filing  of  affidavits.  Fla.,  Bule  42; 
Mich.,  Eule  16;  Pa.,  Eule  52;  E. 
I.,  Bule  9. 

Since  special  replications  have 
gone  into  disuse  it  is  the  proper 
practice  where  an  answer  sets  up 
new  matter  which  plaintiff  can 
meet  with  other  new  matter  by 
way  of  avoidance,  to  set  up  such 
new  matter  of  replication  by 
amendment  to  the  bill.  Cushman 
V.  Bonfield,  139  111.  219  (1S91). 

18.  Fla..  Eq.  Bule  42;  Mosher  v. 
Knox  College.  32  HI.  155  (1863); 
Brown  v.  Eicketts,  2  Johns.  Ch. 
425   (1817);  E.  I.,  Bule  9. 


AMENDING  BILLS  531 

Such  amendment  may  be  allowed  however,  but  in  such  a 
case  if  new  averments  are  introduced  by  such  amendment 
as  to  facts  which  would  not  properly  be  the  subject  of 
proof  under  the  original  bill,  the  court  should  give  an 
opportunity  for  a  new  hearing,  unless  it  appears  that 
there  was  a  full  inquiry  as  to  such  facts  and  that  they 
are  embraced  in  the  report.^^  So  after  a  report  of  a 
master  was  returned  and  exceptions  thereto  were  taken 
by  the  defendant  and  sustained,  the  plaintiff  was  allowed 
to  amend  his  bill  on  terms  so  as  to  obviate  the  grounds 
of  exceptions,  but  the  case  was  reopened  for  a  new  hear- 
ing on  the  issue  made  by  the  amendment  if  the  defendant 
should  so  elect.^^ 

Such  an  amendment  should  also  be  allowed  where  the 
facts  necessary  to  the  amendment  can  be  obtained  only 
upon  the  hearing  before  the  master;  and  especially  where 
they  are  within  the  knowledge  of  the  opposite  party,  and 
his  relation  to  the  bill  is  such  that  he  ought  to  have  volun- 
tarily disclosed  them.^^ 

§  311.  — After  taking  out  evidence.  The  court  for  obvi- 
ous reasons  is  loth  to  allow  amendments  after  the  wit- 
nesses in  a  cause  have  been  examined  and  the  proofs 
closed,  except  when  the  amendment  desired  is  merely 
formal,  or  if  substantial  when  it  can  be  made  without 

19.  King    V.    Howes,.  181    Mass.  59  Fed.  394  (1904).     See  also  San- 

445    (1902).      A    plaintiff    was    al-  born    v.    Sanborn,    7    Gray    (Mass.) 

lowed  to  amend  his  bill  after  the  142     (1856);     Matlack    v.     Mutual 

master's    report   by   introducing   a  Life    Insurance    Co.,    3    Pa.    Dist. 

claim    inadvertently    omitted,    the  138,   14  Pa.  Co.  Court   188   (1893); 

evidence  to  support  it  having  been  Hazard    v.    Hidden,    14    R.    I.    356 

mainly   taken,   subject   to   any   de-  (1884). 

fence  of  the  defendant  arid  to  the  In  Foster  v.  Van  Ostern,  72  111. 

additional    costs    resulted.      Nellis  App.   307   (1897),  a  defendant  was 

V.  Pennock  Mfg.  Co.,  38  Fed.  379  not   allowed   to   amend   his   answer 

(1889).  and    cross    bill    after    a    master's 

It  is  too  late  to  amend  after  the  report  was  filed, 

hearing  before  the  master  is   eon-  20.  Drew    v.    Beard,    107    Mass. 

eluded,   when  the   amendment   sets  64  (1871). 

up  a  distinct  ground  of  negligence.  21.  Hoyt  v.  Smith,  27  Conn.  468 

Clyde  V.  Richmond,  etc.,  D.  R.  Co.,  (1858). 


532 


EQUITY  PRACTICE 


prejudice  to  the  defendant.--  But  amendments  will  be 
readily  allowed  for  the  purpose  of  adding  proper  parties 
after  the  testimony  is  taken. -^ 

§  312.  — At  the  final  hearing.  Amendments  which 
change  the  substance  of  the  bill  ought  not  to  be  allowed 
at  final  hearing,  except  where  it  is  necessary  to  accom- 
plish the  ends  of  justice  and  the  defendant  will  not  be 
injured  in  any  way  thereby.--*  But  amendments  intro- 
ducing proper  parties  will  be  freely  allowed  at  the 
hearing.--^ 

At  the  final  hearing  or  even  after  appeal,  where 
the  proof  has  established  grounds  of  relief  not  sufficiently 
set  forth  in  the  bill,  the  plaintiff  will  be  penuitted  to 
amend  so  as  to  meet  the  case  proved.-''    So  the  plaintiff' 


22  So.  Chicago  Brewing  Co.  v. 
Taylor,  205  111.  132  (1903);  Dana 
V.  Valentine,  5  Mete.  (Mass.)  8 
(1842) ;  Babcock  v.  Twist,  19  Mich. 
516  (1870);  Dow  v.  Jewell,  18  X. 
H.  340  (1846);  Hoofstitler  v.  Hos- 
tetter,  172  Pa.  575  (1896). 

23.  Seymour  v.  Long  Dock  Co., 
17  N.  J.  Eq.  169   (1865). 

24.  Walker  v.  Brown,  45  Miss. 
615  (1871);  Norton  v.  Parsons,  67 
Vt.  526  (1895);  Ellis  v.  Whitacre, 
106  Va.  1   (1906). 

Leave  to  amend  at  the  hearing 
is  properly  refused  where  the 
amendment  would  involve  a  re- 
hearing of  the  whole  case  upon  a 
new  answer  and  further  testimony. 
Goodbody  v.  Goodbody,  95  111.  456 
(1880). 

25.  Maine.  Haughton  v.  Davis, 
23  Me.  2S  (1843);  Felch  v.  Hooper, 
20  Me.   159   (1841). 

Michigan.  Livingston  v.  Hayes, 
43  Mich.  129  (1888);  Thomas  v. 
Gain,  35  Mich.  154   (1876). 

New  Jersey.  Elmer  v.  Loper,  25 
X.  J.  Eq.  475  (1874);  Henry  v. 
Brown,  8  X.  J.  Eq.  245  (1850). 


Tennessee.  Perkins  v.  Hayes, 
Cooke   i^Tenn.)   189  (1812). 

Vermont.  Vermont  Mining  Co. 
V.  Windham  Bank,  44  Vt.  489 
(1872). 

But  see  V.  S.  Eq.  Eule  43  (1913), 
which  provides  that  where  defend- 
ant objects  in  his  answer  to  the 
bill  for  want  of  parties,  and  plain- 
tiff does  not  set  down  motion  for 
argument  within  fourteen  days, 
but  goes  to  hearing  and  objection 
is  sustained,  plaintiff  cannot 
amend  as  of  course.  Fla.  Eq.  Rule 
33  is  to  the  same  effect. 

26.  As  the  reason  of  the  rule 
that  material  amendments  should 
not  be  allowed  at  the  hearing  of 
a  cause  is  that  they  may  surprise 
the  adverse  party,  it  would  not  be 
improper  to  allow  an  amendment 
at  the  hearing  when  both  parties 
treat  a  question  as  in  issue,  and 
introduce  testimony  on  it  when 
there  is  no  averment  in  the  bill 
covering  it.  Moshier  v.  Knox 
College,  32  HI.  155   (1863). 

In  Hagar  v.  Whitmore,  82  Me. 
248   (1890),  it  was  held  that  "the 


AMENDING  BILLS 


533 


will  be  allowed  at  the  hearing  to  amend  the  prayer  of  the 
bill,  so  as  to  enable  the  court  to  grant  the  relief  justified 
by  the  case  made  by  the  bill  and  established  by  the 
proofs.^" 

From  the  preceding  sections,  it  may  be  gathered  as  a 
general  rule  that  the  courts  in  the  exercise  of  their  dis- 
cretion will  allow  before  final  decree  -^  any  amendment 


maxim  probata  sectindum  allegata 
applies  in  equity  as  well  as  at  law. 
Where  the  evidence  first  discloses 
fresh  grounds  for  relief,  or  defence, 
the  party  desiring  to  avail  himself 
of  them  should  state  them  in  some 
amendment  or  supplemental  plead- 
ing which  upon  proper  terms,  he 
can  always  obtain  leave  to  file. 
The  decree  must  follow  the  allega- 
tions." See  also  Koch  v.  Eoth, 
150  ni.  212  (1894)  (discretionary 
where  no  hardship  on  defendant); 
Filston  Farm  Co.  v.  Henderson, 
106  Md.  335  (1907);  Doe  v.  Doe,  37 
N.  H.  268  (1858)  (to  conform  to 
answer) ;  Stevens  v.  Shaw,  66  N. 
J.  Eq.  116  (1904);  Doonan  v. 
Glynn,  26  W.  Va.  225  (1885).  So 
where  the  plaintiff 's  title  stated  in 
a  foreclosure  bill  was  not  complete, 
he  was  allowed  to  amend  his  bill 
at  the  hearing  by  setting  up  his 
title  proved  in  the  cause.  Terhune 
V.  Taylor,  27  N.  J.  Eq.  80  (1876). 
Where  the  plaintiff  corporation 
sued  by  a  wrong  name,  it  was 
allowed  to  be  changed  to  the  right 
name  at  the  hearing.  Building 
Association  v.  Martin,  13  N.  J. 
Eq.  427  (1861).  A  bill  to  have  a 
mortgage  discharged  was  allowed 
to  be  amended  to  a  bill  to  redeem. 
Harrigan  v.  Bacon,  57  Vt.  644 
(1885).  So  a  bill  has  been  amend- 
ed after  final  hearing  so  as  to 
make  the  contract  alleged  agree 
with     that     proved.       Davison     v. 


Davison,  13  N.  J.  Eq.  246   (1861). 

Where  a  case  has  been  twice 
remanded  to  the  lower  court  for 
further  proceedings  the  bill  may 
be  amended  provided  the  princi- 
ples announced  in  the  opinion  of 
the  superior  tribunal  are  observed. 
Cable  V.  Ellis,  120  111,  136   (1887;. 

After  a  cause  has  been  remand- 
ed the  plaintiff  should  not  be 
allowed  by  a  subsequent  amend- 
ment to  the  bill  to  dispute  the 
facts  upon  which  he  obtained  a 
decision  favorable  to  his  interests. 
Lombard  v.  The  Chicago  Sinai 
Congregation,  75  111.  271  (1874). 

27.  Loggie  v.  Chandler,  95  Me. 
220  (1901);  Morrison  v.  Mayer,  63 
Mich.  238  (1886);  Codington  v. 
Mott,  14  N.  J.  Eq.  431  (1862); 
Neale  v.  Neale,  9  Wall.  1,  19  L.  ed. 
590  (1869);  Hardin  v.  Boyd,  113 
U.  S.  756,  28  L.  ed.  1141  (1884). 
So  where  in  a  bill  to  set  aside  a 
sheriff 's  sale,  praying  for  an  uncon- 
ditional reconveyance,  the  allega- 
tions were  sufficient  to  warrant  a 
prayer  for  leave  to  redeem,  and  the 
proofs  supported  the  bill  to  that 
extent,  the  court  allowed  the 
prayer  to  be  amended  at  the  hear- 
ing. Graffam  v.  Burgess,  117  U.  S. 
180,  29  L.  ed.  839  (1885). 

28.  An  order  for  a  decree  is  not 
a  final  decree  within  the  meaning 
of  the  statute.  Gilpatrick  v.  Glid- 
den,  82  Me.  201  (1889). 

As  to  what  amendments  will  be 


534  EQUITY  PRACTICE 

to  the  bill,  formal  or  substantial,  \rliich  is  in  furtherance 
of  justice,-*  on  such  terms  as  will  not  prejudice  the  defend- 
ant, except  an  amendment  which  seeks  to  introduce  an 
entirely  new  ca>e  after  the  cause  has  been  heard. 

§  313.  Motion  for  leave  to  amend.  Application  for  leave 
to  amend  should  be  made  by  petition,  or  motion  in  writ- 
ing as  it  is  more  commonly  called.  Such  motion  should 
be  properly  headed  with  the  title  of  the  cause  and  entitled 
* '  motion  to  amend  bill ' '  and  may  begin  as  follows :  '  *  And 
now  comes  the  plaintiff  in  the  above  entitled  cause  and 
asks  leave  of  the  court  to  amend  his  bill  by  striking  out," 
etc.  Then  follows  a  statement  lerhafim  of  the  words  to 
be  stricken  out  or  inserted  or  both.  But  if  the  matters 
which  the  plaintiff  desires  to  have  stricken  out  or 
inserted  are  numerous  and  extensive,  the  better  course  is 
for  the  plaintiff  to  add  after  the  above,  the  words  "so 
that  said  bill  as  amended  shall  read  as  follows"  and  then 


allowed  after  decision  or  after 
final  decree,  see  the  following 
cases: 

Alabama.  Mnnter  v.  Linn,  61 
Ala.  492  (1S7S^,  (cannot  amend  to 
bring  about  different  result  after 
decree  made). 

Illinois.  Foss  v.  Peoples'  Gas 
Light  and  Coke  Co.,  145  111.  App. 
215  (1908);  Sawyer  v.  Campbell, 
130  IlL  186  (1889),  (allowance  of 
amendment  after  decision  is  dis- 
cretionarv>. 

Mississippi.  Eckbert  t.  Halbert, 
30  Miss.  273  (1855),  (decree  re- 
versed, demurrer  sustained,  cause 
remanded  with  leave  to  amende ; 
Hannum  v.  Cameron,  20  Miss.  5"'>9 
(1849),  (cannot  amend  after  ap- 
peal and  decision). 

Ne-w  Jersey.  Jones  v.  Daven- 
port. 45  X.  J.  Eq.  77  (1899\  (can- 
not amend  after  filing  hearing  and 
decree  to  make  new  case'). 

Bhode  Island-     National  Bank  of 


Commerce  v.  Smith.  17  R.  L  244 
(1892^,  (cannot  amend  to  make  a 
new  case  after  decision). 

Vermont.  Barrett  v.  Sargeant, 
18  Vt.  367  (lS46i,  (decree  reversed 
and  cause  remanded  with  leave  to 
amend  by  adding  partiesV 

Virginia,  Boiler  v.  Murray,  107 
Va.  527  (1907),  (amendment  not 
allowed  after  hearing  and  deciding 
case  on  the  merits). 

United  States.  Distilling  Co.  v. 
Harper.  167  Fel.  389  (1908),  (can 
amend  to  correct  clerical  error  in 
name  of  corporation  after  decis- 
ion). 

29.  Where  there  has  been  great 
delay  on  the  part  of  the  plaintiff 
in  applying  for  leave  to  amend  it 
will  be  refused.  Wolverton  v. 
Taylor.  157  Dl.  485  (1895):  Marr 
V.  Wilson.  70  Tenn.  229  (1879): 
Bill  V.  Skilling.  39  W.  Va.  108 
(1894^:  Terry  v.  McLure,  103  U.  S. 
442.  26  L.  ed.  403  (1880). 


AMENDING  BILLS  535 

annex  the  amended  bill.  The  motion  need  only  be  signed 
by  the  solicitor.  Leave  to  amend  should  be  moved  for  at 
nisi  prius,  the  amendment  presented  and  acted  upon,  that 
the  aggrieved  party  may  have  opportunity  to  except  to 
the  decision.^" 

§  314.  — Notice  and  hearing'.  The  motion  for  leave  to 
amend  should  then  be  filed  with  the  clerk  of  courts  in  the 
usual  way  and  that  fact  entered  upon  the  docket,  and 
notice  ^^  thereof  should  be  given  to  the  defendant  or  his 
solicitor  by  delivering  or  mailing  to  him  a  copy  of  such 
motion  or  of  such  motion  and  of  the  new,  amended  bill, 
accompanied  by  a  notice  of  the  following  tenor:  ''Please 
take  notice  that  I  have  this  day  filed  in  court  the  motion 
of  which  the  enclosed  is  a  true  copy,"  signed  by  plaintiff's 
solicitor.  Then  if  the  amendment  asked  for  is  before 
issue  in  the  cause,  and  is  not  an  amendment  as  to  parties, 
it  is  generally  provided  by  chancery  rule  that  the  matter 
need  not  be  brouight  to  the  attention  of  the  court  at  all, 
but  the  clerk  may  simply  enter  on  the  docket ' '  amendment 
allowed  as  of  course. ' '  But  after  issue  or  where  it  is  an 
amendment,  as  to  parties,  the  usual  practice  is  for  the 
counsel  of  each  side,  informally,  to  arrange  with  each 
other  and  the  court  for  a  hearing  on  the  allowance  of  the 

30.  Shaw  V.  Monson  Co.,  96  Me.  the  defendant,  unless  he  is  notified 
41    (1801);    Hewett   v.    Adams,    50       of  the  change.     Ihid. 

Me.  271  (1862);  Aldine  Co.  v.  In  many  jurisdictions  it  is  ex- 
Philips,  118  Mich.  162,  42  L.  E.  A.  pressly  provided  by  statute  or 
531  (1898).  chancery  rule  that  where  plaintiff 

31.  In  Fogg  V.  Merrill,  74  Me.  amends  before  issue  and  after  de- 
523  (1883),  it  was  held  that  a  de-  fendant  has  taken  out  a  copy  of  the 
fendant  in  equity  acknowledging  bill,  he  must  furnish  a  copy  of 
due  service  of  the  bill,  may  fairly  the  amended  bill  to  the  defendant 
be  held  to  have  constructive  notice  gratis.  Such  is  the  rule  in  Ala. 
of  all  amendments  that  are  made  Code,  Sec.  3125;  Fla.  G.  S.  1906, 
before  he  is  defaulted.  Art.    4,    Sec.    1867,    and    Eule    41; 

The  principles  of  legal  procedure  Mass.    Eule    18;    Miss.    Code,    Sec. 

forbid  the  introduction,  even  by  a  594;  N.  H.  Eule  94;  N.  J.  Eule  69; 

supplemental    bill,    of    an    amend-  E.  I.  Eule  8;  Tenn.  Code,  Sec.  6142; 

ment  which  increases  the  claim  of  IT.  S.  Eq.  Eule  28  (1913). 
the  plaintiff,   after  the   default   of 


536 


EQUITY  PRACTICE 


amendment,  or  the  plaintiff's  solicitor  may  add  to  the 
notice  of  the  filing  of  the  motion  the  fui'ther  notice  that 
he  will  at  such  a  time  and  place,  present  such  motion  to 
the  court  for  allowance.  An  amendment  after  issue  or 
as  to  parties  cannot  be  allowed  by  the  clerk  or  made  with- 
out an  order  of  court  for  that  purpose.^- 

§  315.  Amendments,  how  made.  "When  the  motion  for 
leave  to  amend  has  been  allowed  by  the  court  and  that 
fact  entered  upon  the  docket,  the  bill  then  stands  amended 
in  accordance  with  the  wording  of  the  alteration  set  forth 
in  the  written  motion  without  any  actual  change  in  the 
original  bill  on  the  file  and  without  filing  any  complete 
perfected  bill.  But  where  the  parties  agree,  the  court 
will  frequently  allow  amendments  to  be  made,  even  when 
the  request  is  made  for  the  first  time  at  the  hearing, 
especially  if  it  be  a  merely  formal  or  clerical  error,  by 
actual  alteration  of  the  orisdnal  bill  on  the  file.^^    When 


32.  Luce  V.  Giaham,  4  Johns.  Ch. 

(X.  Y.l  170  (1819);  Baker  v.  Bald- 
win, 1  E.  I.  489  (1S47).  Where 
leave  to  amend  a  bill  was  granted 
but  no  amendment  was  made  the 
cause  stood  on  the  bill  as  filed. 
Hudnit  V.  Tomson,  26  X.  J.  Eq.  239 
(1S75).  An  agreement  for  the 
amendment  of  a  pleading  amounts 
to  nothing  until  the  agreement  has 
been  executed  by  an  actual  change 
in  the  pleading.  Jones  v.  Daven- 
port, 45  X.  J.  Eq.  78  (1SS9). 

Where  after  obtaining  an  order 
to  amend  bill  after  issue,  the 
amendment  is  not  filed  within  the 
required  time,  plaintiff  will  be  con- 
sidered to  have  abandoned  the 
same.  Fla.  Bule  43.:  Md.  Bule  30; 
Pa.  Bule  50;  B.  I.  Bule  11  (ten 
davs). 

33.  In  Alabama,  if  amendment 
is  brief  it  mav  be  interlined  with 
ink  of  a  different  color,  but  if 
lengthy     should     be     written     on 


separate  sheets  and  filed  with  reg- 
ister as  an  amendment.     Bule  39. 

In  Illinois  and  Maryland,  it  is 
held  to  be  bad  practice  to  amend 
by  interlineation  or  erasures.  The 
amendinents  should  be  on  separate 
paper.  Stanberry  v.  Moore,  56  HI. 
472  (1S70);  Garrity  v.  Wilcox.  83 
111.  159  (1S76);  Walsh  v.  Smythe, 
3  Bland  (Md.)  9  (1830). 

In  Michigan,  in  every  case  of 
amendment  without  leave  of  court, 
the  party  making  it  shall  either 
file  a  new  engrossment  of  the 
pleading,  or  an  engrossed  or  printed 
copy  of  the  amendment  contain- 
ing proper  references  to  the  pages 
and  lines  in  the  original  pleading 
on  file  where  such  amendments  are 
to  be  inserted  or  made.     Bule  17. 

In  Mississippi,  amendments  of 
bills  and  answers  shall  be  made  on 
paper,  distinct  from  the  bill  or  an- 
swer, except  where  the  amendment 
is    of    a    brief    character    when    it 


AMENDING  BILLS 


537 


the  motion  is  for  leave  to  file  a  new  amended  bill  and 
that  is  allowed,  the  new  bill  filed  is  the  only  bill  there- 
after referred  to  in  the  suit  although  the  original  bill  still 
remains  on  the  file. 

When  an  amendment  is  to  be  made  by  adding  new 
parties,  the  new  parties  are  brought  in  by  serving  the 
original  bill  upon  them  in  the  same  way  as  upon  the 
original  parties  and  the  procedure  thereafter  is  the 
same.^^  The  same  length  of  notice  as  given  original 
parties  should  be  given  the  new  party  before  his  appear- 
ance is  required,  and  the  same  length  of  time  thereafter 
within  which  to  demur,  plead  or  answer. 

Where  the  plaintiff  is  allowed  to  amend  his  bill  after 
he  has  obtained  an  injunction,  the  order  granting  the 
motion  for  leave  to  amend  should  be  entered  upon  the 


may  be  made  by  erasure  or  inter- 
lineation with  ink  of  a  different 
color  from  that  in  which  the  bill 
or  answer  is  written;  and  the 
amendment  shall  be  made  in  such 
a  manner  that  it  may  be  ascer- 
tained with  certainty  in  what  it 
consists.     Code,  Sec.  596. 

In  New  Jersey,  when  the  plain- 
tiff shall  amend  his  bill  which  has 
been  sworn  to,  no  interlineation, 
erasure  or  other  alteration  shall  be 
made  in  the  original  bill  on  file; 
but  the  amended  bill  shall  be  en- 
grossed anew,  sworn  to  and  filed 
and  annexed  to  the  original  bill 
unless  the  court  shall  otherwise 
order.     Eule   71. 

In  Ehode  Island,  plaintiff  may  at 
any  time  fill  blanks,  correct  errors 
in  dates,  misnomers  of  parties,  mis- 
description of  premises,  and  cleri- 
cal errors,  and  matters  of  mere 
form  in  general.     Rule  8. 

In  West  Virginia  the  rules  of  the 
Cabell  Co.  Cir.  Court  provide  that 
an   amendment    may   be    made    by 


filing  separate  paper  or  by  inter- 
lining or  adding  to  the  pleading 
the  amendment  and  fully  setting 
out  the  amendment  in  the  order 
granting  leave  to  amend.  W.  Va., 
Cabell  Co.  Cir.  Court,  Rule  XXII. 

34.  No  new  process  need  issue 
unless  new  parties  are  added.  U.  S. 
Equitable  Life  Assurance  Society 
V.  Laird,  24  N.  J.  Eq.  319  (1874); 
Beekman  v.  Waters,  3  Johns.  Ch. 
(N.  Y.)  410  (1818).  See  also  Miss. 
Code,  Sec.  597. 

Where  defendants  had  not  an- 
swered the  original  bill  and  were 
called  upon  by  an  amended  bill  to 
answer  both  the  amended  and  the 
original  bill,  new  subpoenas  were 
not  required.  Fitzhugh  v.  McPher- 
son,  9  Gill,  and  J.  (Md.)  51  (1837). 

An  amendment  which  does  not 
affect  his  right  does  not  require 
that  a  defendant  already  before 
the  court  shall  be  summoned  to 
answer.  Albright  v.  Flowers,  52 
Miss.  246  (1876). 


538  EQUITY  PRACTICE 

docket,  "Motion  granted  without  prejudice  to  the  injunc- 
tion."^" 

§  316.  Irregular  amendments.  If  the  plaintiff  takes 
advantage  of  an  order  to  amend,  so  as  to  introduce  a  new 
cause  of  action  after  issue  or  other  matter  not  included 
in  the  motion  to  amend  or  warranted  by  the  order  thereon, 
or  which  is  for  any  other  reason  irregular,  the  defendant 
may  move,  on  notice  to  the  plaintiff,  that  the  amended 
portion  be  stricken  out  or  the  amended  bill  be  taken  off 
the  file  and  the  record  restored  to  its  original  state,  and 
that  the  plaintiff  may  be  ordered  to  pay  the  defendant's 
costs  occasioned  by  the  amendment  and  the  motion  to 
strike  it  out.^*^ 

§  317.  Amendments  by  changing  from  law  to  equity  and 
vice  versa.  In  some  jurisdictions  where  law  and  equity 
are  administered  by  the  same  court  but  with  separate 
forms  of  procedure,  it  is  provided  by  rule  or  statute  that 
an  action  at  law  can  be  changed  by  amendment  into  a  bill 
in  equity  and  vice  versa.^"^    Such  a  change  in  the  plead- 

35.  Johnson  v.  Vail,  14  N.  J.  Eq.  Without  express  statutory  pro- 
423  (1862);  Mt.  Olivette  Cemetery  vision  or  chancery  rule,  such 
Co.  V.  Budike,  2  Tenn.  Ch.  480  amendments  are  usually  not  al- 
(1876).  lowed.     Lullman  v.  Barrett,  18  111. 

36.  Daniels  Ch.  Pr.,  (6th  Am.  App.  573  (1886) ;  Haywood  v.  Hap- 
ed.),  p.  425.  good,  4   Gray  437    (1856),    (a  case 

So  where  an  amended  bill  under-  before  the  statute) ;  Blalock  v. 
takes  to  waive  an  answer  under  Equitable  Life  Assurance  Co.,  73 
oath,  while  the  original  bill  re-  Fed.  655  (1856). 
quires  a  sworn  answer  the  proper  But  in  New  Hampshire,  the  gen- 
practice  is  not  to  demur  but  to  eral  statute  authorizing  amend- 
file  a  motion  to  strike  the  at-  ments  in  the  matter  of  form  and 
tempted  waiver  from  the  bill  or  substance  is  construed  to  authorize 
that  such  waiver  be  stricken  out  such  change.  Metcalf  v.  Gilmore, 
before  permitting  the  amended  bill  59  N.  H.  417  (1879);  Winnepesau- 
to  be  filed.  The  Springfield  Com-  kee  Paper  Co.  v.  Eaton,  64  N.  H. 
pany  v.  Ely,  44  Fla.  319  (1902).  234  (1886);  Gage  v.  Gage,  66  N.  H. 

37.  Maine,  E.  S.,  Chap.  84,  Sees.  282   (1890). 

14,    15,    16;    Maryland,   Ann.    Code  Under  the  Massachusetts  statute 

1911,  Art.  26,  Sec.  44;  Mass.,  E.  L.,  the  court   in  Merrill   v.   Beckwith, 

Chap.   159,  Sec.   6,  Chap.   173,  Sec.  168    Mass.    73     (1897),    allowed    a 

52;  U.  S.  Eq.  Eules  (1913),  22,  23.  bill  in  equity  for  the  specific  per- 


AMENDING  BILLS 


539 


ing  does  not  depend  solely  upon  the  volition  of  the  plain- 
tiff, bnt  may  be  ordered  by  the  court  sua  sponte,  ^^  and  it 
would  therefore  seem  to  be  entirely  within  the  discretion 
of  the  court  whether  to  allow  or  refuse  such  change  in 
any  case.  Furthermore  the  change  properly  comes  under 
the  head  of  amendments  and  should,  it  would  seem,  be 
governed  by  statutes  allowing  amendments  at  the  dis- 
cretion of  the  court  at  any  time  before  final  decree,  and 
by  the  decisions  holding  that  exceptions  do  not  lie  to  the 
exercise  of  such  discretion.^^ 


formance  of  a  contract  to  be 
changed  into  an  action  at  law  for 
damages  for  breach  of  a  contract 
on  motion  of  the  plaintiff  on  pay- 
ment of  costs,  and  in  Loring  v. 
Salisbury  Mills,  125  Mass.  138 
(1878),  the  court  after  holding 
that  a  trustee  appointed  by  deed 
cannot  maintain  an  action  at  law 
for  an  injury  to  the  trust  prop- 
erty before  he  became  trustee, 
whereby  the  legal  title  passed  to  a 
third  person,  allowed  him  by  vir- 
tue of  the  same  statute  to  change 
his  action  at  law  into  a  suit  in 
equity. 

But  an  action  at  law  cannot  be 
changed  to  a  suit  in  equity  where 
such  an  amendment  would  not  only 
entirely  transform  the  action  itself, 
but  would  change  its  object,  pur- 
pose and  defendants.  A.  L.  &  E. 
F.  Goss  Co.  V.  Greenleaf,  98  Me. 
436    (1904). 

In  Martin  v.  Smith,  102  Me.  27 
(1906),  in  an  action  at  law  for  the 
possession  of  land,  it  wa§  held 
that  the  plaintiff  could  not  amend 
under  such  a  statute  to  obtain  the 
reformation  of  a  deed,  since  this 
was  not  the  subject  matter  of  the 
action  at  law  but  an  independent 
right  which  should  be  decided  in  a 
separate  proceeding  in  equity. 


38.  Flint  V.  Comly,  95  Me.  251 
(1901). 

39.  In  Massachusetts  such  change 
from  law  to  equity  is  referred  to 
in  the  statute  allowing  it  as  an 
amendment,  and  it  is  expressly 
held  that  the  exercise  of  such 
power  is  a  matter  of  discretion  to 
which  no  exception  lies.  Terry  v. 
Brightman,  133  Mass.  536  (1882), 
In  this  case  it  was  held  that  it  is 
within  the  power  of  the  superior 
court,  after  a  rescript  has  been 
sent  down  by  the  supreme  court 
ordering  judgment  for  the  defend- 
ant in  an  action  at  law  pending  in 
that  court,  and  an  entry  has  been 
made  by  the  clerk  on  the  docket 
of  that  court  in  accordance  with 
the  rescript,  to  suspend  the  judg- 
ment and  to  allow  an  amendment 
changing  the  action  at  law  to  a 
suit  in  equity,  during  the  first 
term  and  before  any  final  judg- 
ment has  been  entered  by  that 
court. 

In  George  v.  Eoed,  101  Mass. 
378  (1869)  it  was  held  that  no  ex- 
ception will  lie  to  the  allowance 
of  an  amendment  changing  a  suit 
at  law  into  a  proceeding  in  equity, 
or  vice  versa,  on  the  ground  of 
ladies  by  the  plaintiff  or  on  the 
ground    that    if    the    amendments 


540  EQUITY  PRACTICE 

§318.  Change  from  law  to  equity — How  made.     The 

amendment,  as  has  been  seen,  may  be  ordered  by  the  court 
of  its  own  accord,  or  upon  motion  filed  by  the  plaintiff  and 
notice  thereof  given  to  the  defendant  or  his  solicitor  in 
the  usual  way  as  in  the  case  of  any  motion  for  leave  to 
amend.  As  to  the  practice  to  be  followed  in  making  the 
change,  where  it  is  thus  ordered  or  allowed,  the  following 
method  of  procedure  is  advised:  Strike  the  declaration 
at  law  from  the  writ  and  insert  a  bill  in  equity  in  its  place 
and  then  enter  the  cause  upon  the  equity  docket  and 
remove  the  writ  and  bill  with  the  other  papers  in  the 
cause  to  the  equity  files,  making  the  entry  upon  the  law 
docket  under  the  original  action  at  law  "Pleadings  at  law 
stricken  out,  and  parties  ordered  to  plead  in  equity. 
Pleadings  filed.    Cause  transferred  to  the  equity  docket 

and  numbered    thereon  and  papers  removed  to 

the  equity  files."  If  an  attachment  has  been  made  in  the 
action  at  law  such  attachment  will  probably  survive,  since 
the  change  is  in  the  nature  of  an  amendment."*'^ 

The  above  method  of  making  the  change  by  inserting  a 
bill  in  equity  in  the  original  writ,  it  will  be  seen,  is 
especially  adapted  to  the  case  where  an  attachment  has 
been  made,  since  the  pleadings  arrive  upon  the  equity 
files  in  exactly  the  form  in  which  they  would  have 
appeared  if  the  suit  had  been  brought  there  originally. 

After  being  thus  removed  to  the  equity  docket  the 
further  entry  should  be  made  thereon,  * '  Transferred  from 

were  not  granted  the  suit  would  and  if  so,  upon  what  terms.  The 
have  to  be  dismissed  and  a  new  upper  court  sustained  the  demur- 
suit  would  be  barred  by  the  rer,  but  held  that  the  motion  to 
statute  of  limitations.  In  Ins.  Co.  amend  to  an  action  at  law  if 
V.  Abbott,  127  Mass.  558  (1879),  allowed  might  involve  a  question 
the  presiding  justice  reserved  for  of  terms,  and  was  proper  for  the 
the  decision  of  the  upper  court,  consideration  of  a  single  judge. 
the  questions  whether  he  was  cor-  40.  Elaine,  E.  S.,  Ch.  81,  See.  20, 
rect  in  sustaining  a  demurrer  and  expressly  provides  that  no  attach- 
also  whether  a  change  from  ment  shall  be  affected  by  these  pro- 
equity    to    law   should    be    allowed  ceedings. 


AMENDING  BILLS  541 

No law  docket. ' '    The  suit  then  proceeds  in  all 

respects  as  an  equity  cause. 

§  319.  Change  from  equity  to  law — How  made.  When 
the  amendment  from  equity  to  law  has  been  ordered  or 
allowed  by  the  court,  if  the  suit  was  brought  by  a  simj^le 
bill  without  attachment,  the  method  of  procedure  advised 
is  to  make  a  regular  writ  and  declaration  at  law,  dating 
the  writ  the  day  that  the  bill  was  filed  (since  suit  is  held 
to  have  been  begun  in  equity  the  day  the  bill  is  filed  and 
at  law  the  day  the  writ  is  made  with  intention  of  service), 
and  making  it  returnable  the  first  day  of  the  term  of  court 
then  in  progress,  if  there  be  one,  otherwise  at  the  first 
term  ensuing.  All  the  papers  including  the  original  bill 
and  subpoena  (to  show  service)  should  then  be  trans- 
ferred to  the  law  files.  If  an  attachment  has  been  made 
the  procedure  is  simple,  since  in  that  case  the  original 
suit  must  have  been  brought  by  writ  of  attachment  with 
bill  in  equity  inserted  therein,  so  that  the  only  change 
required  would  be  to  strike  out  the  bill  and  insert  a 
declaration  in  place  thereof.  In  either  case  the  entry  upon 
the  equity  docket  should  then  be  "Pleadings  in  equity 
stricken  out  and  parties  ordered  to  plead  at  law.  Plead- 
ings filed.  Cause  transferred  to  the  law  docket  and  num- 
bered   thereon  and  papers  removed  to  the  law  files. ' ' 

In  case  of  attachment,  such  attachment  will  probably  sur- 
vive as  shown  in  the  preceding  section.  After  being  thus 
transferred  to  the  law  docket,  the  further  entry  should  be 

made   thereon,    ' '  Transferred   from   No equity 

docket."  The  suit  then  proceeds  in  all  respects  as  a 
regular  common  law  action,  as  if  entered  at  the  regular 
term  of  court  for  that  county  then  in  progress,  if  there 
be  one,  otherwise  at  the  next  term.^^ 

41.  Another  method  which  might  the   bill,   transferring  both   to   the 

be     employed     where    the     suit     is  law  files.     This  would  seem  to  an- 

brought  by  a  regular  bill  is  equity  swer  the  requirement  of  "pleading 

without  any  attachment,  is  to  file  at   law,"   since   the   declaration   is 

a  declaration  at  law  in  addition  to  a  pleading,  yet  it  would  leave  such 


5^2  EQUITY  PRACTICE 

§  320.  On  such  amendments,  new  service  or  appearance 
not  required — Costs.  The  chief  advantage  of  the  above 
changes  from  Jaw  to  equity  and  vice  versa  are  that  attach- 
ments are  preserved  and  that  the  time  and  expense 
required  for  a  new  service  of  process  upon  the  defendant 
are  dispensed  with.  But  where  it  is  necessary  to  join  new 
parties,  service  of  process  must  be  made  upon  them  in 
the  regular  way  and  the  full  statutory  notice  given. 
Furthermore  a  new  appearance  is  not  required  in  such 
case;  and  this  fact  may  be  of  material  advantage  to  the 
plaintiff  where  a  voluntary  general  appearance  has  been 
entered  in  the  first  instance  by  non-resident  defendants 
and  the  plaintiff  then  finds  it  necessary  to  change  from 
law  to  equity  or  vice  versa,  since  the  defendants  might 
not  choose  to  appear  a  second  time  under  the  new  form 
of  action,  and  the  jurisdiction  over  their  persons  origi- 
nally obtained  would  thus  be  lost  if  a  new  appearance 
were  required. 

The  statutes  generally  provide  that  the  change  may  be 
made  upon  reasonable  terms,  that  is  upon  such  tenns  as 
may  be  just  to  both  parties.  Where  the  plaintiff  has  mis- 
taken his  action  through  his  own  fault  or  negligence,  it 
■would  seem  to  be  just  that  he  should  pay  the  costs  of  tlic 
suit  to  the  time  of  change.^-     But  where  the  change  is 

new   pleading  without   any  frame  one  side  of  the  court  and  finished 

work  or  setting,  as  it  were,  except  on     the     other    without    a    break, 

by  reference  to  the  bill  in  equity  which    was    undoubtedly    the    pro- 

and    the    result    would    be    some-  "  cedure       contemplated       by       the 

thing  of  an  anomaly  among  the  law  statutes;   the   case   can  be   readily 

files.     Such  a  method,  however,  is  traced;     service,     appearance     and 

not   open   to   any   serious  practical  attachments      are      unquestionably 

objections    and    has    the    merit    of  preserved   and   the   date   of   begin- 

being  simple  and  convenient.  ning  the  suit  is  unchanged. 

The  method  of  procedure  advised  42.  So    in    Merrill    v.    Beckwith, 

in    the    text    for    changing    from  168  Mass.  72   (1897),  after  rescript 

law    to    equity    and    vice    versa    is  from    the   upper   court    but    before 

deemed    preferable,    since    in    this  final    decree,    the    change    from    a 

way  the   unity   and   continuity   of  bill    for    specific     performance    to 

the  original   suit   are  preserved,  it  action  at  law  for  damages  was  al- 

being    the    same    cause    begun    on  lowed  on  payment  of  costs  to  date. 


AMENDING  BILLS  543 

found  to  be  advisable  from  facts  discovered  at  the  hear- 
ing not  previously  within  the  knowledge  of  the  defendant, 
and  not  discoverable  by  the  exercise  of  reasonable  dili- 
gence, a  proper  order  would  seem  to  be  that  the  party 
ultimately  prevailing  recover  the  costs  of  the  whole  cause. 


CHAPTER  XVIII 
DISMISSING  BILLS  AND  STAYING  PROCEEDINGS 

§  321.  In  general.  The  subject  of  this  chapter  refers 
to  the  dismissal  of  bills  otherwise  than  at  a  final  hearing. 
It  frequently  becomes  necessary*  or  advisable  in  the  course 
of  a  suit  for  the  plaintilT  to  dismiss  his  own  bill,  or  for 
the  defendant  to  ask  for  the  dismissal  of  the  bill  on 
account  of  the  failure  of  the  plaintiff  to  file  his  replica- 
tion or  otherwise  proceed  with  the  suit.  Before  going  on 
therefore  to  take  up  the  proceedings  in  a  cause  after  issue 
is  made  up  by  the  filing  of  a  replication  or  otherwise, 
it  will  be  necessaiy  to  consider  the  subject  of  the  dis- 
missal of  bills. 

§  322.  Dismissal  of  bills  by  plaintiff.  The  general  rule 
is  that  the  plaintiff  will  be  allowed  by  the  court,  as  a 
matter  of  course,  to  dismiss  his  bill  without  prejudice  at 
any  time  before  final  decree;  ^  but  it  may  be  stated  as  an 

1.  Illinois.  Allott  v.  Amer.  Am.  Zylonite  Co.  v.  Celluloi.l  Mfg. 
Strawboard  Co.,  237  111.  55  (1908)  Co.,  32  Fed.  809  (1887). 
(even  after  court  has  announced  A  bill  may  be  dismissed  by- 
its  conclusions  on  the  evidence) ;  plaintiff  against  all  the  defendants 
Purdy  V.  Henslee,  97  111.  3S9  or  any  one  of  them.  Kusch  v. 
(1881).  Kusch.  143  111.  353   (1892). 

Massachusetts.         Kempton      v.  In  Alabama,  the  plaintiff  on  ap- 

Burgess,     136    Mass.     192     (1SS3);  plication    to    register    in    vacation 

Mears    v.    Boston,    etc.,    R.    Co.,    5  may  dismiss  his  bill  and  the  regis- 

Gray  371   (1S5.5).  ter   must   enter   order   on  the   min- 

New  Jersey.      Dawson  v.  Amey,  utes.     But  if  it  is  after  answer  or 

40  X.  J.  Eq.  494  (188.5).  cross   bill    filed,    the   defendant    at 

Tennessee.       Moore    v.    Tilman,  the  next  succeeding  term  of  court 

106   Tenn.    361    (1901);    Sharpe    v.  may   show   cause   against    the    dis- 

Allen,  79  Tenn.  518  (1883).  missal   and   procure   a   vacation   of 

United    States.       Morton    Trust  the  order.     Code,  Sec.  3123. 
Co.  V.  Heath,  150  Fed.  606  (1907); 

544 


DISMISSING  BILLS  AND  STAYING  PKOCEEDINGS  545 


exception  to  the  general  rule  tliat  where  there  has  been 
any  proceeding  in  the  cause  which  has  given  the  defend- 
ant a  right  against  the  plaintiff,  the  latter  cannot  dismiss 
his  bill  as  of  course,  but  the  court  will  exercise  its  dis- 
cretion and  refuse  permission  to  dismiss  the  bill  if  it  would 
in  any  way  prejudice  the  defendant.^ 


2.  Ex  -parte  Jones,  133  Ala.  212 
(1901);  Cypress  Co.  v.  Young  Co., 
60  Fla.  382  (1910);  Mason  v.  E.  R. 
Co.,  52  Me.  82  (1861).  In  Illinois 
the  right  to  dismiss  before  final 
decree  is  absolute.  Wilcoxon  v. 
Wilcoxon,  111  111.  App.  90  (1903). 
But  by  statute  the  plaintiff  cannot 
dismiss  his  bill  if  a  cross  bill  has 
been  filed,  without  the  consent  of 
defendant.  No  defendant,  how- 
ever, can  avail  himself  of  this 
statute  unless  he  himself  is  a  party 
to  the  cross  bill.  Blair  v.  Reading, 
99  111.  600  (1881).  After  a  decree 
dismissing  cross  bill,  the  case  as 
far  as  the  original  bill  is  con- 
cerned stands  as  though  no  cross 
bill  had  been  filed,  and  the  plaintiff 
may  then  dismiss  his  bill.  Ogle  v. 
Koerner,  140  111.  170  (1892^. 

Whenever  proceedings  have  been 
taken  in  a  cause  which  would  en- 
title the  defendant  to  a  decree 
either  against  the  plaintiff  or  a  co- 
defendant,  the  plaintiff  will  not  be 
allowed  to  dismiss  without  the 
consent  of  the  defendant.  Bank  v. 
Rose,  1  Rich.  (S.  C.)  Eq.  294 
(1845);  Chicago,  etc.,  R.  Co.  v. 
Rolling  Mill  Co.,  109  U.  S.  702,  27 
L.  ed.   1081    (1884). 

A  dismissal  of  a  bill  by  agree- 
ment does  not  operate  to  dismiss 
a  petition  in  the  case  filed  by  a 
party  defendant.  Pethtel  v.  Mc- 
Cullough,  49  W.  Va.  520  (1901). 

So  where  a  general  demurrer  had 
been  overruled  on  argument  it  was 
Whitehouse  E.  P.  Vol.  I — ^35 


held  that  the  plaintiff  could  not 
dismiss  his  bill  as  a  matter  of 
course,  the  defendant  having  a 
right  to  appeal  against  the  order 
overruling  the  demurrer.  Dan.  Ch. 
Pr.  (6th  Am.  ed.),  p.  790,  citing 
Cooper  V.  Lewis,  2  Phil.  178,  181. 
See  also  Ainslie  v.  Sims,  17  Beav. 
174;  Booth  v.  Leycester,  1  Keen 
247,  255. 

A  plaintiff  is  not  entitled  as  of 
right  to  dismiss  his  bill  after  the 
answer  is  filed,  setting  up  that  the 
license  to  use  a  patent  upon  which 
the  suit  is  brought  is  fraudulent 
and  void  and  showing  that  the  de- 
fendant is  entitled  to  a  decree  for 
its  cancellation.  Mfg.  Co.  v.  War- 
ing, 46  Fed.  87  (1891). 

It  has  been  held  that  the  plain- 
tiff cannot  dismiss  his  bill  after 
the  report  of  a  master  upon  a  ref- 
erence. Am.  Bell  Tel.  Co.  v.  W.  U. 
Tel.  Co.,  69  Fed.  666  (1895).  But 
see,  contra,  Langlois  v.  Matthies- 
sen,  155  111.  230   (1895). 

After  an  account  is  stated  ad- 
versely to  the  plaintiff  and  ex- 
cepted to,  the  plaintiff  cannot  dis- 
miss the  bill  over  the  objection  of 
the  defendants.  Fisher  v.  Stovall, 
85  Tenn.  316   (1886). 

It  is  not  regarded  as  a  preju- 
dice to  the  defendant  that  the 
plaintiff  dismissing  his  own  bill 
may  at  his  pleasure  harass  him  by 
filing  another  bill  for  the  same 
matter.  Pullman's  Palace  Car  Co. 
V.   Central   Transp.   Co.,   171   U.   S. 


546 


EQUITY  PRACTICE 


In  most  jurisdictions,  the  filing  of  a  cross  bill  does  not 
prevent  the  plaintiff  from  dismissing  his  suit.  Where  the 
cross  bill  seeks  relief  merely  as  a  means  of  defense,  the 
dismissal  of  the  original  bill  dismisses  the  cross  bill  as 
well.-*  Where  the  cross  bill  asks  for  affirmative  relief, 
however,  dismissal  of  the  original  bill  does  not  carry  the 
cross  bill  with  it.-** 

§  323.  Dismissal  by  plaintiff  after  decree.  After  a 
decree  whether  final  or  interlocutory  has  been  made  by 
which  the  rights  of  a  party  defendant  have  been  adjudi- 
cated, the  plaintiff  will  not  be  allowed  to  dismiss  his  bill 
without  the  consent  of  the  defendant,  since  all  parties  are 
interested  in  a  decree.^   If  however  a  decree  merelv  directs 


138,  43  L.  ed.  108  (1897).  It  is  held 
in  Camden  R.  Co.  v.  Stewart,  19 
X.  J.  Eq.  69  (1868)  that  "there 
is  no  precedent  for  allowing  a 
plaintiff  to  dismiss  his  own  bill  as 
to  part  of  the  relief  prayed  for  in 
it  and  permitting  him  to  proceed 
with  the  residue.  The  decrees  to 
the  contrary  quoted  from  the 
books  of  precedents  are  all  de- 
crees made  upon  the  hearing  of 
the  cause."  The  proper  course  in 
such  case  is  to  amend. 

2a.  Meyer  v.  Balera  Land  Co., 
133  Ala.  554  (1901);  Gilmour  v. 
Felhour,  45  Miss.  627  (1871);  Aller- 
man  v.  Right,  19  W.  Va.  201 
(1881).  So  where  the  original  bill 
is  dismissed  for  lack  of  jurisdic- 
tion. Dows  V.  Chicago,  11  "Wall. 
108  (1870);  Metz  v.  McAvoy,  etc., 
Co.,  98  111.  App.  584  (1901);  Scot- 
tish Union,  etc.,  Co.  v.  Warren, 
etc.,  Co..  60  So.  1010   (Miss.  1913). 

2b.  Alabama.  Abel  v.  Planters, 
etc.,  Co.,  92  Ala.  382  (1890);  Bell 
V.  McLaughlin,  62  So.  798  (Ala. 
1913V 

Florida.  Ballard  v.  Kennedy,  34 
Fla.  483   (1894). 


Illinois.  Thomas  v.  Thomas,  250 
111.  354,  35  L.  R.  A.  (X.  S.)  1158 
(1911). 

Michigan.  Griffin  v.  Griffin,  118 
Mich.  446   (1898). 

Mississippi.  Ladner  v.  Ogden,  31 
Miss.  332   (1856). 

New  Jersey.  Dawson  v.  Amey, 
40  X.  J.  E.  494  (1895). 

Pennsylvania.  Sears  v.  Scran- 
ton  Trust  Co..  228  Pa.  126  (1910). 

Bhode  Island.  Wetmore  v.  Fiske, 
15  R.  I.  354  (1SS6). 

Tennessee.  Partee  v.  Goldberg, 
101  Tenn.  664  (1899). 

Virginia.  Ragland  v.  Broadnax, 
29  Gratt.  401   (1877). 

West  Virginia.  Pechtel  v.  Mc- 
Cullogh.  49  W.  Va.  520  (1901). 

United  States.  Chicago,  etc.,  Co. 
v.  Union,  etc.,  Co.,  109  U.  S.  702, 
27  L.  ed.  1081  (1883):  Harding  v. 
Corn,  etc.,  Co.,  168  Fed.  658  (1909). 

3.  Stevens  v.  Theatres  Limited 
(1903'),  1  Ch.  857;  X.  Y.,  N.  H.  & 
H.  R.  R.  Co.,  Petitioner,  182  Mass. 
439  (1903);  State  v.  Hemming- 
way.  69  Miss.  491  (1891);  Collins 
V.  Taylor.  4  X.  J.  Eq.  163  (1842); 
Chicago  R.  Co.  v.  Rolling  Mill  Co., 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  547 

accounts  and  inquiries  in  order  to  enable  the  court  to 
determine  what  is  to  be  done,  the  bill  may  be  dismissed.^ 
And  where  upon  the  hearing  of  the  cause  the  court  has 
merely  directed  an  issue  to  the  jury,  the  plaintiff  may 
before  trial  of  the  issue  obtain  an  order  to  dismiss  the 
bill  with  costs  because  the  directing  of  an  issue  is  only 
to  satisfy  the  conscience  of  the  court  previous  to  making 
up  its  final  decree.  If  however  the  issue  has  been  tried 
and  decided  in  favor  of  the  defendant,  the  plaintiff  will 
not  be  allowed  to  dismiss  without  consent.^ 

§  324.  Dismissal  where  a  plaintiff  sues  on  behalf  of  self 
and  others.  After  a  decree  has  been  made  of  such  a  kind 
that  other  persons  besides  the  parties  on  the  record  are 
interested  in  the  prosecution  of  it,  neither  the  plaintiff 
nor  defendant,  on  the  consent  of  the  other,  can  obtain  an 
order  for  the  dismissal  of  the  bill.''  So  where  a  plaintiff 
files  a  bill  on  behalf  of  himself  and  all  others  of  the  same 


109  U.  S.  702,  713,  27  L.  ed.  1081 
(1884).  In  Hudson  Trust  Co.  v. 
Boyd,  80  N.  J.  Eq.  267  (1912), 
plaintiffs  were  not  allowed,  upon 
an  adjustment  between  the  parties, 
to  open  the  decree,  vacate  the  en- 
rollment and  dismiss  the  bill. 

Plaintiff  cannot  dismiss  after  a 
decree  ordering  both  parties  to  ac- 
count. Wilcoxson  V.  Wilcoxson, 
111  111.  App.  90  (1903);  Hall  v. 
McPherson,  3  Bland  (Md.)  533 
(1829);  Wyatt  v.  Sweet,  48  Mich. 
539  (1882);  Cozzens  v.  Sisson,  5 
E.  I.  489  (1858). 

Where  a  final  decree  is  reversed 
on  appeal,  the  plaintiff  has  the 
same  right  to  dismiss  as  if  no 
final  decree  had  been  made.  Moh- 
ler  V.  Wiltberger,  74  111.  163 
(1874). 

4.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  793,  citing  Barton  v.  Barton,  3 
K.  &  J.  512,  Anon.,  11  Ves.  169. 

5.  Carrington   v.   Holly,   1   Dick. 


280;  Saylor's  App.,  39  Pa.  St.  495 
(1861).  A  fortiori,  where  a  trial 
by  jury  is  a  statutory  right.  Gif- 
ford  V.  Gifford,  154  111.  App.  416 
(1910). 

But  where  issues  of  fact  were 
framed  for  a  jury  and  the  verdict 
found  was  set  aside  by  the  court, 
the  plaintiff  was  allowed  to  dis- 
miss without  prejudice.  Hollings- 
worth  &  Vose  Co.  v.  Foxborough 
District,  171  Mass.  450   (1898). 

6.  Fay  v.  Erie  &  K.  Ey.  Bank, 
Harr.  Ch.  (Mich.)  194  (1842); 
Hirshfield  v.  Fitzgerald,  157  N.  Y. 
166,  46  L.  E.  A.  839  (1898) ;  Updike 
V.  Doyle,  7  E.  I.  446,  462  (1863); 
Johnson  v.  Miller,  96  Fed.  271 
(1899). 

In  Massachusetts  there  is  no 
absolute  right  on  part  of  plaintiff 
to  dismiss  bill  even  before  decree 
where  other  persons  have  become 
interested.  New  York,  etc.,  E.  Co., 
Petitioner,  182  Mass.  439  .(1903). 


548 


EQUITY  PRACTICE 


class,  he  retains  absolute  dominion  of  the  suit  until  the 
decree  and  may  dismiss  the  bill  at  his  j)leasure  up  to  that 
time."  But  after  a  decree  he  cannot  thus  deprive  the  other 
persons  of  the  same  class  of  the  benefit  of  the  decree  if 
they  see  fit  to  prosecute  it.^ 

§  325.  Dismissal  by  one  of  several  plaintiffs.  One  co- 
plaintitt"  may  dismiss  the  bill  so  far  as  it  concerns  him- 
self provided  it  will  not  in  any  way  injure  other  parties 
to  the  suit,  either  plaintiff  or  defendant.  When  some 
other  party  to  the  action  has  acquired  some  right  or 
advantage  or  a  defendant  has  properly  set  up  a  claim 
for  affirmative  relief,  affecting  adversely  the  party  seek- 
ing to  retire,  and  which  the  party  objecting  to  such  with- 
drawal is  entitled  to  have  settled  and  determined  in  the 
suit,  the  court  will  refuse  the  order  unless  terms  can  be 
imposed  so  as  to  protect  such  other  party  in  the  suit  from 
injury .'^     Before  decree,  consent  of  parties  is  not  neces- 


7.  Sterndale  v.  Hankinson,  1 
Sim.  399;  Collins  v.  Taylor,  3 
Green.  Ch.  163,  480.  "The  reason 
of  the  distinction  is  that  before 
decree,  no  other  person  of  the  class 
is  bound  to  rely  upon  the  diligence 
of  him  who  has  first  instituted  his 
suit,  but  may  file  a  bill  of  his  own; 
and  that  after  a  decree  no  second 
suit  is  permitted."  Handford  v. 
Storie,  2  S.  &  S.  196,  198.  But  it 
seems  that  such  absolute  dominion 
of  the  suit  is  not  possessed  by 
plaintiff  even  before  decree  when 
some  of  those  for  whose  benefit 
the  bill  is  filed  are  actually  admit- 
ted on  the  record  as  co-plaintiffs. 
In  such  case  it  is  held  that  the 
original  plaintiff  cannot  have  a 
dismissal  against  the  objection  of 
the  others,  and  if  he  unduly  de- 
laj^s  the  prosecution  of  the  suit, 
the  conduct  of  the  cause  may  be 
intrusted     to     the     new     parties. 


Thompson  v.  Fisler,  33  N.  J.  Eq. 
480  (1881);  Nail  Co.  v.  Iron  & 
Steel  Co.,  46  Fed.  336  (1891). 

In  Piedmont,  etc.,  Co.  v.  Maury, 
75  Va.  508  (1881),  it  was  held  that 
the  plaintiff  could  dismiss  his  bill 
after  application  by  other  parties 
to  be  made  parties  but  before  such 
application  was  acted  upon  by  the 
court. 

8.  Handford  v.  Storie,  2  Sim.  & 
Stu.  196;  Pemberton  v.  Topham,  1 
Beav.  316;  McDougald  v.  Dough- 
erty, 11  Ga.  570;  Thompson  v.  Fis- 
ler, 33  N.  J.  Eq.  480  (1881) ;  Innes 
V.  Lansing,  7  Paige  (N.  Y.)  583 
(1839).  But  see,  contra,  Atlas 
Bank  v.  Nahant  Bank,  23  Pick. 
480  (1839),  and  cases  cited  in  note 
1,  ante,  p.  544. 

9.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
792,  citing  Holkirk  v.  Holkirk,  4 
Mad.  50;  Muldrow  v.  Debose,  2 
Hill's  Ch.  (S.  C.)  375,  377  (1836). 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  549 

sary;  after  decree  according  to  general  rule  the  bill  should 
not  be  dismissed  without  consent  of  defendant.^*^ 

§  326.  Dismissal  of  unauthorized  suits.  Where  a  bill 
has  been  filed  in  the  name  of  a  person  as  plaintiff  without 
authority,  such  person  may  disavow  the  suit  and  move  to 
have  the  bill  taken  off  the  file  or  dismissed,  or  that  further 
proceedings  be  stayed, ^^  or  the  court  may  dismiss  the 
bill  on  its  own  motion  when  its  attention  is  called  to  the 
facts.^^  In  such  case  the  solicitor  who  has  thus  filed  the 
bill  without  authority  may  be  ordered  to  pay  the  defend- 
ant's costs  of  suit,  and  the  plaintiff  the  costs  of  motion  to 
dismiss.  The  same  course  should  be  pursued  where  there 
are  several  plaintiffs  and  all  disavow  the  suit.  But  when 
one  or  more  of  several  plaintiffs  wish  to  withdraw  from 
the  suit,  they  should  move  that  their  names  be  stricken 
out  of  the  bill.i^ 

§  327.  Dismissal  of  biUs  and  staying  proceedings  by 
defendant  on  submission  to  plaintiff's  demand.  Where 
a  defendant  submits  to  the  whole  demand  of  the  plaintiff 
and  to  pay  the  costs,  he  has  a  right  to  apply  to  the  court 
to  dismiss  the  bill  or  stay  all  further  proceedings.^^  Thus 
it  is  held  that  a  defendant  may  have  the  bill  dismissed 

10.  On  the  authority  of  Dan.  Ch.  Keen  679.  The  motion  in  either 
Pr.  (6th  Am.  ed.),  p.  792;  Lans-  case  must  be  supported  by  an  affi- 
dale  V.  Lansdale,  13  Ves.  167,  it  davit  of  the  respective  applicants 
seems  that  under  the  English  prac-  themselves  that  the  bill  has  been 
tice  a  co-plaintiff  could  not  with-  filed  without  any  authority  from 
draw  without  the  defendant's  con-  them.  To  avoid  the  effect  of  such 
sent  in  any  case,  since  the  effect  an  application  the  solicitor  against 
is  to  diminish  the  security  of  the  whom  it  is  made  must  show  dis- 
defendant  for  costs.  tinctly  upon  aifidavit  that  he  had 

11.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  a  special  authority  from  the  party 
p.  307;  Palmer  v.  Walesby,  L.  R.,  moving  to  institute  the  suit.  No- 
3  Ch.  App.  732  (taken  off  the  file) ;  tice  of  the  intended  motion  must 
Wright  V.  Castle,  3  Mer.  12  (dis-  be  given  to  the  solicitor  who  filed 
missed).  the   bill   and   the   other  parties   to 

12.  Kankakee  v.  Railroad  Co.,  the  suit.  Dan.  Ch.  Pr.  (6th  Am. 
115  111.  88  (1885);  Frye  v.  Calhoun  ed.),  p.  308. 

Co.,  14  111.  132  (1852).  14.  Dan.   Ch.   Pr.    (6th   Am.   ed.), 

13.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p.  795,  citing  Sivell  v.  Abraham,  8 
p.  308;  Tabbernor  v.  Tabbernor,  2      Beav,  598. 


550  EQUITY  PRACTICE 

against  the  plaintiff  upon  paying  what  is  dne  the  par- 
ticular creditor  by  whom  a  creditor's  bill  is  brought, 
together  with  his  costs  of  suit.^''  Likewise  where  there 
are  several  defendants  and  the  plaintitt"  claims  only  part 
of  the  relief  against  one  defendant,  as  in  a  foreclosure 
or  redemption  suit,  the  bill  may  be  dismissed  on  the  special 
motion  of  a  subsequent  incumbrancer  as  against  all  the 
defendants  except  himself,  on  his  paying  into  court  by 
a  specified  day  a  sum  sufficient  to  cover  the  mortgage 
debt  and  interest  and  the  costs  of  the  plaintiff  and  other 
defendants. ^"^ 

§  328.  Dismissal  for  want  of  prosecution.  Whenever 
at  any  stage  of  the  proceedings  the  duty  and  the  priv- 
ilege of  taking  the  next  step  rest  solely  with  the  plain- 
tiff' and  he  fails  to  take  such  step  within  the  time  pre- 
scribed by  statute  or  rules  of  court,  if  any,  otherwise 
within  a  reasonable  time,  the  defendant  may  move  to  have 
the  bill  dismissed  with  costs  for  want  of  prosecution.^" 

The  proper  practice  after  final  Fla.  493  (1909');  Macfarlane  v. 
decree  to  effectuate  a  settlement  Hills,  50  Fla.  566  (1905);  Perry  v. 
arrived  at  between  the  parties  is  Wittich,  37  Fla.  237  (1S96)  (delay 
to  stay  proceedings  and  not  to  dis-  of  seven  years  after  filing  replica- 
miss  the  bill.  Hudson  Trust  Co.  v.  tion). 
Boyd,  80  X.  J.  Eq.  267  (1912).  Illinois.     Cleaver   v.   Smith,   114 

15.  Innes  v.  Lansing,  7  Paige  HI.  114  (1885)  (delay  of  five 
(X.  Y.)  583,  585  (1839).  Unless  months  to  proceed  after  replication 
there  are  several  plaintiffs,  in  tiled  and  case  put  on  trial  docket). 
which  case  he  must  satisfy  all  of  Massachusetts.  Bancroft  v.  Saw- 
them.  Thompson  v.  Fisler,  33  X.  J.  iu.  143  Mass.  144  (1887)  (delaying 
Eq.  4S0,  482    (ISSl).  for    two    years    to    take    out    sub- 

16.  Dan.   Ch.   Pr.    (6th  Am.  ed.),  poena). 

p.  795.  Michigan.     Smith  v.   Cozart,  45 

17.  The  right  to  dismiss  for  want  Mich.  69S  (1871)  (failure  of  plain- 
of  prosecution  exists  independently  tiff  to  proceed  after  plea  filed  by 
of    statute.      Leonard    v.    Garland,  defendant). 

252  HI.  300   (1911).  Mississippi.      McLean    v.    Letch- 

The  following  cases  are  examples  ford.   60   Miss.    169    (1882)    (delay 

of  unreasonable  delay  on  the  part  must  be  unreasonable). 

of     plaintiff     in     prosecuting     his  New     Hampshire.      Clement     v. 

case:  Wheeler.     2-3     X.     H.     361     (1852) 

Florida.      Meyers    v.    Julian,    59  (where    plaintiff    does    not    comply 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  551 


Where,  however,  the  privilege  of  speeding  the  cause  is 
exjjressly  given  to  the  defendant,  the  court  will  refuse 
to  dismiss  the  bill  for  want  of  prosecution.^^  In  many 
jurisdictions  the  defendant  is  given  by  statute  or  chancery 
rule  the  right  of  having  the  bill  dismissed  at  certain 
stages  of  the  proceeding  if  circumstances  require  it.^^ 
After  a  decree  or  even  a  decretal  order  has  been  made,  a 


with  orders  of  court  to  speed  the 
case). 

New  Jersey.  West  v.  Paige,  9 
N.  J.  Eq.  203  (1852).  See  also 
Lang  V.  Belloff,  53  N.  J.  Eq.  298 
(1895)  (merely  filing  replication 
without  bringing  his  case  to  hear- 
ing after  an  order  to  speed  the 
cause). 

West  Virginia.  Bragg  v.  United 
Thaeher  Coal  Co.,  70  W.  Va.  655 
(1912)  (where  plaintiff  will  not 
bring  in  the  necessary  parties 
within  a  reasonable  time  after 
order  so  to  do). 

United  States.  Maekaye  v.  Mal- 
lory,  80  Fed.  256  (1897)  (delay  of 
thirteen  years  after  issue  before 
taking  testimony). 

18.  McVieker  v.  Filer,  24  Mich. 
241  (1872);  Maekaye  v.  Mallory, 
80  Fed.  256  (1897). 

A  bill  will  not  be  dismissed  for 
want  of  prosecution  where  the  de- 
lay occurs  after  the  appointment 
of  a  master  to  take  the  testimony 
and  before  his  report,  when  the 
party  complaining  has  made  no 
effort  to  obtain  an  early  publica- 
tion of  the  proofs,  since  the  delay 
of  the  master  to  report  is  no  more 
the  fault  of  the  plaintiff  than  the 
defendant.  Warren  v.  Shaw,  43 
Me.  429  (1857);  Lewis  v.  Laidley, 
39  W.  Va.  432  (1894). 

19.  If  plaintiff  "shall  not  be- 
fore the  second  term  after  the  fil- 
ing of   the   bill  have   taken   meas- 


ures to  bring  in  the  defendant,  his 
bill  may  be  dismissed"  by  the 
court  of  its  own  motion.  Alabama 
Rule  27;  see  Florida  Rule  1. 

When  a  cause  is  called  for  hear- 
ing, if  the  complainant  does  not 
appear,  it  shall  be  dismissed.  Ala- 
bama Rule  69. 

Or  after  failure  of  plaintiff  to 
file  replication  within  the  required 
time.  Maine,  R.  S.,  Chap.  79,  Sec. 
18;  Maryland,  Rule  28. 

After  failure  of  plaintiff  to  set 
down  a  plea  or  demurrer  to  be  ar- 
gued, or  to  take  issue  on  a  plea 
within  a  certain  time.  Massachu- 
setts,  Rule   10. 

Or  on  failure  of  plaintiff  to  reply 
or  set  down  case  for  hearing  on 
bill  and  answer  within  certain 
time.     Massachusetts,  Rule  14. 

If  plaintiff  fails  to  take  a  neces- 
sary step  in  the  case  court  shall 
make  a  peremptory  rule  fixing  the 
time  within  which  the  step  shall 
be  taken  and  if  not  so  taken  the 
cause  shall  be  dismissed.  Tennes- 
see Code,  Sees.  6199,  6200. 

If  plaintiff  fails  to  enter  his  bill 
in  response  to  a  rule  to  file  the 
same,  or  if  he  at  any  time  after 
defendant's  appearance  fails  to 
prosecute  his  case.  Virginia  Code, 
Sees.  3240,  3241. 

If  plaintiff  does  not  use  due  dili- 
gence in  proceeding  against  de- 
fendants who  have  not  answered, 
the  bill  will  be  dismissed  on  appli- 


552  EQUITY  PRACTICE 

bill  cannot  be  dismissed  for  want  of  prosecutionj^*^  but 
it  may  after  a  decree  merely  directing  accounts  and 
inquiries.-* 

§  329.  Dismissal  on  abatement  of  suit.  When  a  suit 
abates  by  the  death  of  a  sole  plaintiff,  the  court  upon 
motion  of  any  defendant,  made  on  notice  sers'ed  on  the 
legal  representative  of  the  deceased  plaintiff,  may  order 
that  such  legal  representative  do  revive  the  suit  within  a 
limited  time  or  that  the  bill  be  dismissed;--  or  in  case 
of  the  death  of  one  of  several  co-plaintiffs,  that  the  sur- 
viving i^laintiffs  revive.-^  So  where  the  abatement  is 
caused  by  the  death  of  a  defendant,  his  representative 
may  move  that  the  plaintiff  do  revive  the  suit  within  a 
limited  time  or  in  default  thereof  that  the  bill  may  be 
dismissed.-^ 

When  a  suit  becomes  defective  by  the  bankruptcy  of  a 
sole  plaintiff,  the  defendant  may,  on  motion,  obtain  an 
order  that  the  trustee  take  proper  supplemental  proceed- 
ings for  the  purpose  of  prosecuting  the  suit,  or  in  default 
that  the  bill  be  dismissed  without  costs.-^ 

cation  of  ilefendants  -who  have  an-  25.  Dan.  Ch.  Pr.  (6tli  Am.  ed.), 
swered.  Vermont,  Rule  27  (3) ;  p.  814.  So  where  one  of  several  co- 
West  Virginia  Code,  Sec.  4805.  plaintiffs  becomes  bankrupt,  a  sim- 

20.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  ilar  order  mav  be  obtained  against 
p.  811;  Bluck  V.  Coluaghi,  9  Sim.  the  other  co-plaintiff.  If  the  plain- 
411.  tiff    becomes    bankrupt    after    de- 

21.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  cree,  the  court  will,  on  motion  of 
811;  Anon.,  11  Ves.  169.  defendant,   order   the   assignees   to 

22.  See  Dan.  Ch.  Pr.  (6th  Am.  elect  whether  they  will  prosecute 
ed.),  p.  812;  Massachusetts,  Eule  the  suit  and  in  default  that  all 
25;  United  States,  Equity  Rule  45  further  proceedings  be  stayed. 
(1913).  In  regard  to  the  method  Whitmore  v.  Oxborrow,  1  Coll.  91; 
of  reviving  suits,  see  Chapter  \T,  Clarke  v.  Tipping,  16  Beav.  12. 
"Bills  Not  Original,"  Sees.  137-  But  the  order  to  dismiss  a  bill 
140,  "Bills  of  Revivor,"  ante,  pp.  on  abatement  of  the  suit  must  not 
263  et  seq.  be    confounded    with    an    order    to 

23.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  dismiss  for  want  of  prosecution, 
p.  S13,  citing  Adamson  v.  Hall,  T.  The  latter  is  not  proper  on  abate- 
&  R.  258.  ment  of  suit  by  death  of  a  plain- 

24.  Burnell  v.  Duke  of  Welling-  tiff  or  after  it  has  become  de- 
ton,  6  Sim.  461.  feetive  by  his  bankruptcy,  but   it 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  553 

§  330.  Dismissal  for  want  of  jurisdiction.  Wherever 
there  is  a  faihire  of  jurisdiction  over  the  person  of  the 
defendant  for  lack  of  service,  the  proper  way  for  the 
defendant  to  take  advantage  of  it  is  by  motion  in  writing 
to  dismiss  the  bill  for  want  of  jurisdiction;  and  it  is  the 
duty  of  the  court  itself  to  dismiss  the  bill  sua  sponte  for 
failure  of  jurisdiction  on  any  ground  whenever  such 
defect  is  discovered  or  brought  to  the  attention  of  the 
court  by  amicus  curiae  or  otherwise.^^ 

§  331.  Dismissal,  how  effected.  The  proper  method  of 
procedure  in  all  the  above  cases  to  obtain  a  dismissal  of 
the  bill,  whether  at  the  instance  of  the  plaintiff  or  the 
defendant,  is  by  petition  or  motion  in  writing,  and  notice 
of  the  filing  of  such  written  motion  together  with  a  copy 
of  the  same  should  be  delivered  or  mailed  to  the  defendant 
or  his  solicitor.  The  bill  cannot  be  dismissed  either  by 
plaintiff  or  defendant  without  an  order  of  court  there- 
for,^'^  although  a  dismissal  of  the  bill  at  request  of  the 
plaintiff  will  be  ordered  by  the  court  as  a  matter  of  course 
before  final  decree,  without  costs  before  appearance  and 
usually  with  costs  after  appearance.^^ 

is  allowable  where  a  suit  becomes  the  record  the  court  may  have  ju- 

defective  by  the  bankruptcy  of  the  risdiction,    and   no    evidence    dehors 

defendant.    The  latter  may  in  such  the  record  is  offered  to  prove  the 

case,     notwithstanding     his     bank-  lack  of  jurisdiction.     See  Wiswell 

ruptcy,   obtain   the   usual   order   to  v.  Starr,  50  Me.  381  (1862). 

dismiss  the  bill  for  want  of  prose-  27.  Long    v.    Anderson,    48    Fla, 

cution.  279    (1904);    Hammond   v.   Paxton, 

26.  Dunnock  v.  Dunnock,   3  Md.  58  Mich.  393  (1885);  El.  Co.  v.  El. 

Ch.   140    (1852);   Deposit,  etc.,   Co.  Co.,  44  Fed.  602,  604   (1890).     He 

V.  Merchantville,  74  N.  J.  Eq.  330  cannot     discontinue     upon     an     ex 

(1908);    Earles   v.  Earles,   3  Head.  parte    entry    in    the    docket.     Am. 

(Tenn.)  366  (1859);  Ward  v.  Hotel  Zylonite  Co.  v.  Celluloid  Mfg.  Co., 

Co.,  65  W.  Va.  721   (1909);   Stock-  32  Fed.  809  (1887). 

bridge  v.   Insurance  Co.,   193   Fed.  The  court  may  dismiss  a  bill  for 

558   (1912).  want    of    prosecution    on    its    own 

But  it  seems  that  bill  will  not  be  motion.     Yott  v.  Yott,  257  HI.  419 

dismissed   upon   motion   or   on   the  (1913). 

mere     suggestion     of      an     amicus  28.  Dan.   Ch.  Pr.   (6th  Am.  ed.), 

curiae  where   so  far  as  appears  by  p.   790;   Bryant  v.  Taylor,   157  111. 


554 


EQUITY  PRACTICE 


Where  a  bill  is  dismissed  upon  motion  of  the  court 
or  of  the  plaintiff,  it  is  usual  and  proper  to  dismiss  it 
without  prejudice,-^  since  where  no  words  of  qualification 
appear  in  the  order  of  dismissal,  it  is  presumed  to  be 
rendered  on  the  merits  and  is  a  bar  to  a  subsequent  bill 
for  the  same  cause.^°  It  is  held  that  a  refusal  to  dismiss 
a  bill  without  prejudice  at  the  cost  of  the  plaintiff  on  a 
motion  made  by  plaintiff  before  any  proof  has  been  intro- 
duced, and  when  it  has  not  been  made  manifest  that  de- 
fendant is  entitled  to  a  decree,  is  an  abuse  of  discretion 
and  an  error.^^ 


App.     227     (1910);     Trust    Co.     v. 
Keith,  150  Fed.  606  (1907). 

If  no  costs  arc  claimed  by  de- 
fendant the  dismissal  may  be  with- 
out costs  even  after  appearance. 
Bradley  v.  Merrill,  88  Me.  319 
(1896). 

29.  Illinois.  Cleaver  v.  Smith, 
114  111.  114  (1885). 

Maine.  Cobb  v.  Baker,  95  Me. 
89   (1901). 

Maryland.  Wilson  v.  Wilson,  23 
Md.  162   (1865). 

Massachusetts.  Kempton  v.  Bur- 
gess, 136  Mass.  192,  193   (1883). 

Michigan.  Krolik  v.  Bulkley,  58 
Mich.  407   (1885). 

New  Jersey.  Codington  v.  Mott, 
14  N.  J.  Eq.  430  (1862). 

West  Virginia.  Carberry  v.  By. 
Co.,  44  W.  Va.  260  (1897). 

United  States.  Indian  Co.  v. 
Shocnfclt,  135  Fed.  484   (1905). 

A  motion  to  dismiss  a  bill  with- 
out prejudice  may  be  waived  where 
the  motion  is  denied  by  the  court 
and  the  plaintiff,  instead  of  stand- 
ing by  his  motion,  proceeds  to 
amend  his  bill  and  goes  to  trial. 
Pingrey  v.  Ruhn,  246  111.  109 
(1910). 

30.  Brown  v.  American  Stone 
Press  Brick  Mfg.  Co.,  54  111.  App. 


650  (1894);  Kempton  v.  Burgess, 
136  Mass.  192,  193  (1883);  Bor- 
rowscale  v.  Tuttle,  5  Allen  (Mass.) 
377  (1862);  Lyon  v.  Perin  Co.,  125 
U.  S.  698,  372  L.  ed.  839  (1888). 
This  is  especially  so  where  the  dis- 
missal is  made  after  the  cause  is 
set  down  for  final  hearing.  Phil- 
lips v.  Wormly,  58  Miss.  398 
(1880);  Da  Costa  v.  Dibble,  40  Fla. 
418  (1898).  But  see  Mabry  v. 
Churchwill,  69  Tenn.  416  (1878), 
where  a  dismissal  on  motion  of 
plaintiff  was  held  not  to  be  res 
adjudicata  even  though  not  ex- 
pressed as  "without  prejudice." 

31.  Bates  v.  Skidmore,  170  111. 
233  (1897).  But  a  dismissal  with- 
out prejudice  will  not  be  made 
where  defendant  has  entitled  him- 
self to  affirmative  relief  or  has  ac- 
quired some  substantial  right  or 
will  be  seriously  prejudiced  or  un- 
necessary litigation  is  apparent  or 
where  it  is  inequitable.  Tilghman 
Cypress  Co.  v.  John  R.  Young  Co., 
60  Fla.  380  (1910). 

Where  a  hearing  had  been  had 
and  a  decree  made  on  the  merits 
which  was  reversed  on  appeal,  the 
court  deciding  that  the  plaintiff 
had  no  equity  against  the  defend- 
ant, it  was  held  that  an  order,  on 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  555 

§  332.  Effect  of  dismissaL  An  order  to  dismiss  a  bill 
puts  an  end  to  every  proceeding  in  the  suit  which  has 
been  dismissed,  and  no  subsequent  step  can  be  taken  in 
it  except  such  as  may  be  necessary  for  carrying  into  effect 
the  order  of  dismissal."-  But  an  order  to  dismiss  a  bill 
for  want  of  prosecution  cannot  be  pleaded  in  bar  to  a 
new  bill  for  the  same  matter.  It  operates  merely  as  a 
discontinuance  and  has  no  more  effect  that  a  nonsuit  at 
law.^^ 

§  333.  Reinstatement.  A  bill  once  voluntarily  dismissed 
cannot  be  reinstated  after  the  end  of  the  term  unless  the 
order  was  obtained  by  fraud. -^^  "Where  reinstatement  is 
made  at  the  same  term  it  may  be  without  notice  to  the 
defendant. ^^ 

§  334.  Election  between  law  and  equity.  Where  a  plain- 
tiff' is  suing  a  defendant  both  at  law  and  in  equity  at 
the  same  time  for  the  same  cause,  the  court  will  compel 
such  jDlaintiff,  upon  the  application  of  the  defendant,  to 
elect  whether  he  will  go  on  with  the  suit  in  equity  or  with 
the  action  at  law.^*^    The  suits  must  be  practically  for  the 

plaintiff's  application  for  a  dismis-  Refusal  to  reinstate   a   case   dis- 

sal    of    his    bill    without   prejudice  missed    for    want    of    prosecution 

was    erroneous.      Flaherty    v.    Mc-  where     the     application     was     not 

Cormick,  123  111.  525  (1888).  made    until    fortv-four    days    after 

32.  Dow  Co.  V.  Deist,  123  111.  the  order  of  dismissal  and  only  two 
App.  364  (1905);  Chicago  Title  &  days  before  the  end  of  the  term 
Trust  Co.  V.  Tilton,  256  111.  97  was  held  not  to  be  error  in  Peddi- 
(1912);  Lakin  v.  Lawrence,  195  cord  v.  Yennigerholy,  212  111.  612 
Mass.  27   (19C7).  (1904). 

33.  McBroom  v.  Sommerside,  2  Where  the  plaintiff  by  an  erro- 
Stewart  (Ala.)  515  (1830);  Porter  neous  ruling  of  court  was  com- 
V.  Vaughn,  26  Vt.  624  (1854).  pelled  either  to  submit  to  a  verdict 

34.  Byrd  v.  McDaniel,  26  Ala.  against  him  by  a  jury  or  dismiss 
582  (1855);  Welborn  v.  Welborn,  his  bill  he  was  allowed  to  rein- 
47  Fla.  348  (1904);  Merritt  t.  Mer-  state  after  a  dismissal  without 
ritt,  33  111.  App.  63  (1888);  Jack-  prejudice.  Warner  v.  Groves,  28 
son  V.  Ashton,  35  U.  S.  480,  9   L.  Ga.  369   (1858). 

ed.   502    (1836);   Willard   v.   Wood,  35.  Smith   v.  Brittenham.  98  111. 

164  U.  S.  502,  41  L.  ed.  531  (1896).  1S8   (ISSD. 

But  see  Tapley  v.  Wilson,  33  Miss.  36.  Delaware.     West  v.  Evans,  1 

467  (1857).       "  Del.  Ch.  122   (1820). 


556 


EQUITY  PRACTICE 


same  cause,^'  and  brought  by  the  same  parties  or  in  the 
same  right, ^^  and  must  be  such  that  a  judgment  or  decree 
in  one  would  be  a  bar  to  the  other.^^  But  the  plaintiff  will 
not  be  compelled  to  elect  unless  the  remedy  in  the  suit 
at  law  is  equally  complete  and  adequate  with  the  remedy 
in  equity.^*^  A  party  cannot  be  required  to  elect,  more- 
over, when  he  is  plaintiff  in  equity  and  defendant  at  law 
upon  the  same  matter;  he  must  be  plaintiff  both  in  equity 
and  at  law.^^    If  the  plaintiff  elects  to  sue  in  equity,  he 


Illinois.  Smith  v.  Billings,  62 
111.  App.  77  (1895). 

Maine.  Fleming  v.  Courtenay, 
95  Me.  135  (1901). 

Maryland.  Bradford  v.  Wil- 
liams, 2  Md.  Ch.  1   (1849). 

Massachusetts.  Sanford        v. 

Wright,  164  Mass.  So   (1895). 

New  Jersey.  Central  R.  R.  Co. 
V.  R.  R.  Co.,  32  X.  J.  Eq.  67  (1880) ; 
Way  V.  Bragaw,  16  X.  J.  Eq.  213 
(1863). 

Rhode  Island.  Kehoe  v.  Patton, 
21  R.  I.  223  (1899);  Quidnick  Co, 
V.  Chaflfee,  13  R.  I.  367  (1881). 

Virginia.  Zetelle  v.  Myers,  19 
Gratt.  62    (1869). 

As  an  exception  to  the  general 
rule,  however,  it  has  been  held  that 
a  mortgagee  may  pursue  his  reme- 
dies at  law  and  in  equity  at  the 
same  time.  Willis  v.  Levett,  1 
De  G.  &  S.  392;  Schools  v.  Sail,  1 
Seh.  &  Lef.  176;  Dunkley  v.  Van 
Buren,  3  Johns.  Ch.  (N.  Y.)  330 
(1818).  But  see,  contra,  State 
Bank  v.  Wilson,  9  HI.  57  (1847), 
compelling  an  election.  The  power 
to  compel  an  election  is  possessed 
only  by  courts  of  chancery,  and 
cannot  be  exercised  by  a  court  of 
law.  Kemp  v.  Coxe,  14  Ala.  614 
(1848);  Priddy  v.  Hartsook,  81  Va. 
67  (1885).  semhle.  The  plaintiff 
may  be  compelled  to  elect  where 


one  suit  is  brought  in  our  own 
courts  and  the  other  in  a  foreign 
court.  Central  R.  R.  Co.  v.  E.  K. 
Co.,  32  X.  J.  Eq.  73  (1880).  See 
Mitchell  V.  Bunch,  2  Paige  (X.  Y.) 
606  (1831),  as  to  suits  in  state 
court  and  Federal  court  for  same 
state. 

In  certain  cases  it  seems  that 
the  plaintiff  may  be  compelled  to 
elect  whether  he  will  proceed 
partly  in  equity  and  partly  at  law. 
Barker  v.  Dumaresque,  2  Atk.  119; 
Mills  V.  Frye,  19  Yes.  277. 

37.  Fleming  v.  Courtenay,  95 
Me.  135  (1901);  Bradford  v.  Wil- 
liams, 2  Md.  Ch.  1  (1849);  Weeks 
V.  Edwards,  176  Mass.  453  (1900); 
Mahon  v.  City  of  Columbus,  58 
Miss.  310  (1880);  Way  v.  Bragaw, 
16  X^  J.  Eq.  214  (1863);  Hunt  v. 
Darling,  26  R.  I.  480  (1904). 

38.  Stern's  Case,  14  Ala.  397 
(1848);  Fleming  v.  Courtenay,  95 
Me.  135  (1901);  Fulton  v.  Golden, 
25  X\  J.  Eq.  353  (1874);  Kehoe  v. 
Patton,  21  R.  I.  223  (1899). 

39.  Fleming  v.  Courtenay,  95 
Me.  135  (1901);  Laraussini  v.  Car- 
quette,  24  Miss.  151  (1852). 

40.  Fleming  v.  Courtenay,  95 
Me.  135  (1901);  Way  v.  Bragaw, 
16  X.  J.  Eq.  214,  218*  (1863). 

41.  Botts  V.  Cozine,  2  Edw.  Ch. 
(X.  Y.)   582   (1836). 


DISMISSING  BILLS  AND  STAYING  PROCEEDINGS  557 

will  be  enjoined  from  proceeding  at  law  without  leave  of 
the  court/-  but  if  he  elects  to  proceed  at  law,  the  bill  will 
be  dismissed  with  costs.^^  The  dismissal  of  the  bill  in 
consequence  of  an  election  is  not  a  bar  to  another  suit 
for  the  same  matter,^^  The  order  must  allow  a  reasonable 
time  to  elect/^  and  the  election  must  be  in  writing  signed 
by  the  plaintiff  or  his  solicitor  and  filed  with  the  clerk. 


42.  Rogers  v.  Vosburgh,  4  Johns. 
Ch.   (N.  Y.)   84   (1819). 

43.  West  V.  Evans,  1  Del.  Ch. 
122  (1820);  Smith  v.  Billings,  62 
111.  77   (1895). 

44.  Countess  of  Plymouth  v. 
Bladon,  2  Vern.  32;  Livingston  v. 
Kane,  3  Johns.  Ch.  (N.  Y.)  224 
(1817). 

45.  Bracken  v.  Martin,  3  Yerg. 
(Tenn.)   55,  58   (1832). 

In  Fleming  v.  Courtenay,  95  Me. 
135  (1901),  it  is  said:  "When  the 
court  cannot  satisfactorily  deter- 
mine without  an  examination  of  all 
the  pleadings  whether  the  two 
suits  are  for  the  same  cause,  or 
whether  the  action  at  law  is  equal- 
ly complete  and  adequate  with  the 


remedy  in  equity,  it  may  decline 
to  order  the  plaintiff  to  elect  until 
after  the  defendant  in  the  equity 
suit  has  filed  his  answer.  Dun- 
lap  V.  Newman,  52  Ala.  178.  But 
when  there  is  no  controversy  in 
relation  to  those  matters,  or  the 
court  can  ascertain  all  the  mate- 
rial facts  from  an  inspection  of 
the  pleadings  in  the  action  at  law 
and  the  plaintiff's  bill  in  the  suit 
in  equity,  or  otherwise  becomes 
sufficiently  informed  to  determine 
those  questions  without  reference 
to  the  defendant's  answer,  the 
plaintiff  may  be  required  to  make 
his  election  at  any  stage  of  the 
proceedings." 


CHAPTER  XIX 

E\^DENCE 

§  335.  In  general.  "When  the  cause  is  brought  to  an 
issue  by  filing-  a  replication  or  otherwise,  if  the  issue 
presented  be  one  of  law  only  it  is  for  the  court  to  decide 
without  other  evidence,  but  if  the  issue  be  one  of  fact,  the 
next  step  to  be  taken  is  the  preparation  of  proofs  by  the 
plaintiff  and  by  the  defendant  also,  if  he  has  any  case  to 
establish  in  opposition  to  that  made  by  the  plaintiff.  The 
issue  will  then  be  determined  on  such  evidence,  submitted 
either  to  the  court  itself  or  to  a  master  to  whom  the  case 
may  be  sent  for  a  hearing  and  rei)ort,  or  to  a  jury  for  a 
verdict  ujion  issues  framed  to  guide  the  conscience  of  the 
court.  But  in  whichever  way  the  evidence  is  to  be  used, 
the  parties  must  in  each  case  decide  what  they  must  prove 
in  support  of  their  claim,  what  is  proper  and  admissible 
evidence  to  adduce  for  that  puri^ose,  and  how  such  evi- 
dence should  be  taken, 

§  336.  What  must  be  proved — Constructive  admissions. 
As  to  the  first  point,  it  is  clear  that  whatever  is  necessary 
to  support  the  case  of  either  party  must  be  proved  imless 
it  is  admitted  by  the  adverse  party.  It  becomes  necessary 
therefore  to  ascertain  in  the  first  instance  what  matters 
are  admitted  so  as  to  do  away  with  the  necessity  of  proofs. 

Admissions  are  of  two  kinds,  either  upon  the  record  or 
by  agreement  between  the  parties.  Admissions  on  the 
record  may  be  either  constructive  or  actual.  Constructive 
admissions  are  those  which  are  the  necessary  consequence 
of  the  form  of  pleading  adopted.  So  when  a  defendant 
demurs  to  the  bill,  he  admits  the  tmth  of  all  its  allega- 

558 


EVIDENCE 


559 


tions ;  ^  so  when  a  plea  has  been  filed  by  defendant,  the 
bill,  so  far  as  it  is  not  controverted  by  the  plea,  is  admitted 
to  be  true.^  So  where  the  cause  is  set  down  to  be  heard 
on  bill  and  answer,  the  answer  must  be  taken  as  true,^ 

In  most  jurisdictions  it  is  provided  by  statute  or 
chancery  rule  that  all  allegations  of  fact  well  pleaded  in 
the  bill,  and  in  some  jurisdictions  in  bill,  answer  or  plea, 
when  not  traversed,  shall  be  taken  as  tinie.^  In  a  few 
jurisdictions,  however,  the  plaintiff  must  prove  such  alle- 
gations as  are  neither  expressly  denied  nor  admitted  in 
the  answer.^ 

§  337.  — Actual  admissions.  Actual  admissions  on  the 
record  are  those  which  appear  either  in  the  bill  or  in  the 
answer.  The  positive  allegations  of  the  bill,  so  far  as  they 
aid  the  defendant,  are  admissions  in  his  favor  of  the  facts 
so  alleged,  and  therefore  need  not  be  proved  by  the  def end- 


1.  See  Chapter  XI,  "Demur- 
rers," Sec.  214,  note  4,  ante,  p.  391. 

2.  Plaintiff  therefore,  when  he 
has  replied  to  a  plea,  may  rest  sat- 
isfied with  that  admission  and 
need  not  go  into  evidence  as  to 
that  part  of  his  case  which  the 
plea  is  intended  to  cover,  unless 
the  plea  is  a  negative  plea,  in 
which  case  it  will  be  necessary  for 
him  to  prove  the  matter  negatived 
for  the  purpose  of  disproving  the 
plea.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  837.  See  Chapter  XII,  "Pleas," 
Sec.  254,  ante,  p.  439. 

3.  See  Chapter  XIII,  "An- 
swers," Sec.  281,  ante,  p.  485. 

4.  Maine.     Eq.  Eule  27. 
Massachusetts.     Eq.  Rule  28. 
Michigan.      Eq.    Rule     10;     La- 

franee  v.  Griffin,  160  Mich.  236 
(1909). 

Mississippi.     Code,  Sec.  584. 

New  Hampshire.     Eq.  Rule  84. 

New  Jersey.  Comp.  St.,  "Chan- 
cery," Sec.  19,  applies  only  to  al- 


legations on  which  interrogations 
are  based. 

Rhode  Island.     Eq.  Eule  26. 

Vermont.     Eq.  Rule  20. 

West  Virginia.     Code,  Sec.  4790. 

United  States.     Eq.  Rule  30. 

5.  Delaware.  Cochran  v.  Couper, 
1  Harr.  200   (1833). 

Florida.  Pinney  v.  Pinney,  46 
Fla.  559  (1903);  Stackpole  v.  Han- 
cock, 40  Fla.  362,  45  L.  R.  A.  814 
(1898). 

Illinois.  Glos  v.  Cratty,  196  111. 
193   (1902). 

Maryland.  Crow  v.  Wilson,  65 
Md.  479  (1886). 

Mississippi  (prior  to  Code) : 
Gartman  v.  Jones,  24  Miss.  238 
(1852). 

Tennessee.  Bank  of  Jamaica  v. 
Jefferson,  92  Tenn.  537  (1893). 

United  States  (prior  to  1913 
rules) :  Commercial,  etc.,  Co.  v. 
Cummings,  83  Fed.  767  (1897); 
Smith  V.  Ewing,  23  Fed.  741  (C.  C. 
1885). 


560  EQUITY  PRACTICE 

ant  by  other  evidence.''  But  the  plaintiff,  of  course,  can- 
not read  any  part  of  his  bill  himself  in  support  of  his 
own  case."  He  may,  however,  although  he  has  by  his 
replication  denied  the  truth  of  the  defendant's  answer, 
read  any  portion  of  the  answer  as  evidence  in  support  of 
his  case,^  except  where  the  answer  is  that  of  an  infant, 
which  can  never  be  read  to  establish  a  fact  which  it  is 
against  the  infant's  interest  to  admit.  But  the  answer 
of  an  idiot  or  lunatic  put  in  by  guardian  may  be  read 
against  him.  The  plaintiff  cannot  read  the  answer  of 
one  defendant  against  a  co-defendant  as  an  admission 
except  in  interpleader  suits,  where  the  answer  of  one 
defendant  may  be  read  against  a  co-defendant  to  show 
that  adverse  claims  are  made.** 

§  338. — Admissions  by  agTeement.  Admissions  are 
often  agreed  upon  between  the  parties  or  their  solicitors 
to  save  expense  and  delay.  They  should  be  in  writing  and 
signed  either  by  the  parties  or  their  solicitors.  Such 
agreements  are  encouraged  by  the  courts,  but  they  will 
not  allow  an  agreement  for  an  admission  by  which  any 
of  the  known  principles  of  law  are  evaded.^*^ 

6.  Spencer    v.    Otis,    96    111.    570  8.  Craft  v.  Schlag,  61  X.  J.  Eq. 
(1880);  Pearce  v.  Suggs,  85  Tenn.       567  (1901). 

724    (1887);   but  see  Wennigan   v.  9.  Dan.   Ch.    Pr.    (6th   Am.   ed.), 

Bollenbach,  180  111.  222  (1899).     A  pp.  839-843;   Balchen  v.  Crawford, 

bill  may  also  be  read  in  evidence  1   Sandf.   Ch.    (X.  Y.)    380    (1844). 

against    a   plaintiff,   although   filed  This    is   so    unless   the    defendants 

by    him    in    another    suit.      Xorth-  stand  in  privity  of  estate  with  each 

western   Bank  v.   Xelson,   1   Gratt.  other    or    in    such    relationship    as 

108    (1844),    (sworn   bill);   but   see  would   bind    one   another   by   their 

Vanneman     v.     Swedesboro     Loan,  representation.     Stackpole  v.  Han- 

etc,  Association,  42  N.  J.  Eq.  263  cock,  40  Fla.  362,  45  L.  R.  A.  814 

(1886),  which  held  that  a  bill  was  (1898);  Loekman  v.  Miller,  22  So. 

not      evidence      in      another      suit  822    (Miss.    1897).      Nor    can    the 

against   the   party   filing  it   unless  plaintiff  use  the  testimony  of  one 

his  privity  to  it  is  shown,  and  then  defendant    against    another.      Nor 

only  to  prove  the  fact  that  a  suit  can  a  defendant  use  a  co-defendant 

was   instituted   and   not   as  an   ad-  as   a  witness   to   prevent   a   decree 

mission  of  facts  stated  therein.  against  both.    Farley  v.  Bryant,  32 

7.  Wiegert   v.   Franck,   56   Mich.  Me.  474   (1851). 

200   (1885).  10.  Dan.   Ch.  Pr.    (6th  Am.  ed.). 


EVIDENCE 


561 


§  339.  What  evidence  is  proper  and  admissible — Rules 
the  same  in  equity  as  at  law.  The  rules  of  evidence  are 
generally  the  same  in  equity  as  at  law,^^  and  reference 
should  therefore  be  made  upon  this  subject  to  the  gen- 
eral treatises  on  evidence.  Thus  the  rule  that  the  burden 
of  proof  rests  upon  the  party  who  asserts  the  affirmative 
is  common  to  courts  of  equity,  as  well  as  to  courts  of 
law.  ^2  go  as  to  the  admissibility  of  evidence,  the  funda- 
mental maxim  applies  in  both  courts  that  no  proof  can 
be  admitted  of  any  matter  which  is  not  noticed  in  the 
pleadings;  ^^  so  as  to  the  admissibility  of  documentary 
evidence,  what  proves  itself  and  what  does  not;  ^^  so  as 
to  the  competency  of  witnesses  ^^  and  the  inadmissibility 
of  parol  evidence  to  contradict  or  substantially  vary  the 
legal  import  of  a  written  instrument ;  '^^  also  as  to  those 


p.  849.  So  where  the  law  requires 
an  instrument  to  be  stamped,  an 
agreement  will  not  be  allowed  to 
waive  an  objection  arising  from 
its  not  being  stamped.  Owen  v. 
Thomas,  3  M.  &  K.  353,  357. 

11.  Greenleaf  on  Evidence  (15th 
ed.),  See.  250;  Manning  v.  Lech- 
more,  1  Atk.  453;  Glynn  v.  Bank 
of  England,  2  Ves.  Sr.  41;  Gary  v. 
Herrin,  59  Me.  361  (1871); 
Schnepfe  v.  Schnepfe,  108  Md.  139 
(1908);  Dwight  v.  Pomeroy,  17 
Mass.  303  (1835);  Eveleth  v.  Wil- 
son, 15  Mass.  109  (1833);  Dough- 
erty v.  Eandall,  3  Mich.  581  (1885); 
Buttlar  v.  Buttlar,  57  N.  J.  Eq. 
645  (1898);  Stevens  v.  Cooper,  1 
Johns.  Ch.  (N.  Y.)  425,  429  (1815). 

12.  Eyre  v.  Dolphin,  2  Ball.  &  B. 
303;  Hyde  v.  Heath,  75  HI.  381 
(1874);  Pusey  v.  Wright,  31  Pa. 
St.  387  (1858);  Cockran  v.  Blount, 
161  U.  S.  350,  40  L.  ed.  729  (1895). 

13.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  852;  Whaley  v.  Norton,  1  Vcrn. 
483;  Mitchell  v.  Mason,  61  So.  579 

Whltehouse  E.  P.  Vol.  I — 36 


f  Ela.  1913) ;  Miller  v.  Miller,  1  N,  J. 
Eq.  386   (1831). 

14.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
pp.  862,  874;  Binner  v.  Young,  68 
Ala.  34  (1880). 

15.  Alabama  Code,  Sec.  3142; 
Nash  V.  Williams,  20  Wall.  226,  22 
L.  ed.  254  (1874). 

16.  Eveleth  v.  Wilson,  15  Me. 
109  (1838);  Elysville  Mfg.  Co.  v. 
Okisko,  1  Md.  Ch.  392  (1849); 
Stevens  v.  Cooper,  1  Johns.  Ch.  425, 
429  (1815);  Hunt  v.  Eomaniere,  8 
Wheat.  174,  5  L.  ed.  589  (1823). 
But  where  the  powers  of  the  court 
are  invoked  upon  the  ground  of 
mistake  or  fraud,  parol  evidence 
will  generally  be  admitted  to  con- 
tradict or  control  a  written  instru- 
ment if  its  admission  is  necessary 
in  order  to  reach  the  equities  of 
the  case.  Peterson  v.  Grover,  20 
Me.  363  (1841);  Earle  v.  Rice,  111 
Mass.  17  (1872).  See  also  Stout- 
enburgh  v.  Tompkins,  9  N.  J.  Eq. 
332  (1853).  In  Huff  v.  Curtis,  65 
Me.  287  (1876),  it  was  held  that  in 


562 


EQUITY  PRACTICE 


matters  of  which  courts  will  take  judicial  notice.^'  So 
the  rule  is  the  same  in  ecjuity  as  at  law  uuder  statutes 
which  preclude  the  plaintiff  in  a  suit  against  the  admin- 
istrator of  a  deceased  person  from  testifying  except  in 
reference  to  such  facts  as  are  testified  to  by  the  adminis- 
trator.^^    It  is  also  a  rule  applicable  alike  in  courts  of 


suits  in  equity  in  order  to  let  in 
parol  evidence  of  the  contents  of 
a  writing,  upon  the  ground  that 
the  writing  is  lost,  it  is  immaterial 
at  what  stage  of  the  proceedings 
the  loss  is  shown.  In  Whitmore  v. 
Learned,  70  Me.  276  (1879),  it  was 
held  that  where  one  purchases  real 
estate  with  his  own  money,  and  a 
deed  is  taken  in  the  name  of  an- 
other, a  trust  results,  which  by  a 
rule  reluctantly  adopted  in  equity 
may  be  established  by  parol,  but 
this  rule  was  accompanied  at  its 
adoption  with  the  requirement  of 
full  proof,  or  a  high  degree  of  force 
and  weight  in  the  testimony  of- 
fered. Dudley  v.  Bachelder,  53  Me. 
403  (1866);  Baker  v.  Vining,  30 
Me.  121   (1849). 

17.  Judicial  notice  will  be  taken 
of  the  political  divisions  of  a  state 
into  counties  and  towns,  and  of  its 
general  geography.  Ham  v.  Ham, 
39  Me.  263  (1855);  Lake  Co.  v. 
Young,  40  N.  H.  420  (1860).  But 
not,  it  is  said,  of  a  local  situation 
and  the  distance  of  different 
places  in  a  county  from  each  other. 
Deybel's  Case,  4  B.  &  Aid.  243. 
Nor  of  an  incorporated  town.  An- 
derson V.  Com.,  100  Va.  860  (1902). 
Notice  will  not  be  taken  that  cer- 
tain lake  navigation  would  be 
closed  on  April  1st.  Haines  v.  Gib- 
son, 115  Mich.  131  (1896).  But  no- 
tice will  be  taken  that  a  river  at 
a  certain  place  is  a  navigable  river 
under  Federal  jurisdiction.  Com- 
monwealth V.  King,  150  Mass.  221, 


224  (1889).  The  boundaries  of  a 
state  as  claimed  by  it  will  be  no- 
ticed, but  not  the  boundaries  de 
jure.  State  v.  Dunwell,  3  R.  I.  127 
(1855).  Certain  general  political 
questions  will  be  noticed,  as  for 
instance,  that  a  general  election 
was  held  on  a  certain  day  and  that 
certain  officers  were  to  be  voted 
for.  State  v.  Minnick,  15  la.  123, 
125  (1863);  or  the  date  of  election 
for  President  of  the  United  States, 
Jackson  Co.  v.  Arnold,  135  Mo.  208 
(1896);  or  the  result  of  a  local  op- 
tion election,  Thomas  v.  Com.,  90 
Ya.  92,  95  (1893);  contra,  Whitman 
v.  State,  80  Md.  410  (1894).  The 
population  of  a  county  as  shown 
by  the  census  will  be  noticed. 
Worcester  National  Bank  v.  Che- 
ney, 94  111.  430  (1880);  and  the 
resignation  of  a  Circuit  Judge,  Ex 
parte  Peterson,  33  Ala.  74    (1858). 

In  a  state  court  the  laws  of  an- 
other state  must  be  proved  like  any 
other  fact.  Judicial  notice  will  be 
taken  by  a  state  court  of  who  are 
the  judges  of  the  various  courts 
of  record  of  the  state,  and  of  their 
terms  of  office  and  the  organization 
and  jurisdiction  of  such  courts. 
Russell  V.  Sargent,  7  111.  App.  98 
(1880);  Newell  v.  Newell,  10  Pick. 
470  (1830).  The  court  will  of  its 
own  motion  advise  itself  so  as  to 
verify  matters  of  which  it  is  re- 
quired to  take  judicial  notice. 
Rock  Island  v.  Cuineley,  126  111. 
408    (1888). 

18.  Hubbard  v.  Johnson,  77  Me. 


EVIDENCE 


563 


equity  and  in  courts  of  law  that  fraud  is  not  to  be  pre- 
sumed, but  must  be  established  by  proof.^^ 

§  340.  Evidence  how  taken — Documentary.  As  a  gen- 
eral rule  written  instruments  which  do  not  prove  them- 
selves, and  the  execution  of  which  is  not  admitted,  must 
be  proved  by  the  same  evidence  in  equity  as  at  law.^° 
Documents  set  out  or  distinctly  referred  to  in  the  plead- 
ings and  admitted,  or  of  such  a  character  that  they  prove 
themselves,  may  be  read  at  the  hearing  without  order  or 
further  proof;  but  it  seems  that  documents  which  are 
not  set  out  or  referred  to  in  the  pleadings,  although  they 
prove  themselves,  cannot  be  so  read  without  at  least  giv- 
ing notice  of  an  intention  to  read  them  at  the  hearing.^^ 


139  (1885);  Burleigh  v.  White,  64 
Me.  23  (1874).  See  also  Hinck- 
ley V.  Hinckley,  79  Me.  320  (1887). 
But  in  order  to  render  the  plaintiff 
incompetent,  the  pleadings  must 
show  defendant  to  be  administra- 
tor. Douglass  V.  Snow,  77  Me.  91 
(1885). 

19.  Abbott  V.  Treat,  78  Me.  121 
(1886). 

20.  1  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
Sees.  874,  880. 

21.  4  Elliott,  Evidence,  3196. 

In  Maine,  Equity  Eule  25  pro- 
vides that  "All  documentary  evi- 
dence not  requiring  proof  by  the 
testimony  of  witnesses  shall  be 
filed  with  the  clerk  before  the  pub- 
lication of  testimony  and  notice 
thereof  given.  Deeds  executed  in 
due  form  and  recorded,  or  copies 
of  them,  and  other  instruments  in 
writing  may  be  so  filed  and  used 
without  proof  of  execution,  unless 
the  due  execution  be  denied,  or 
fraud  in  relation  thereto  be  alleged, 
of  which  notice  shall  be  given 
within  ten  days  after  notice  that 
they  are  filed. 

"Copies  of  any  votes,  entries  or 


papers  found  on  the  books  of  any 
corporation  and  attested  by  its 
clerk,  may  be  received  as  evidence 
instead  of  the  books,  unless  it  shall 
appear  that  the  opposite  counsel 
has  been  refused  access  to  such 
books  at  reasonable  hours." 

In  Hatch  v.  Bates,  54  Me.  136 
(1866),  it  was  held  that  so  much 
of  this  rule  of  court  as  pertains 
to  a  party's  filing  duly  recorded 
deeds  or  copies  thereof  with  the 
clerk,  etc.,  is  permissive  and  not 
mandatory.  If  a  party  does  not 
file  the  deeds  as  therein  required, 
they  are  not  therefore  inadmissi- 
ble, but  are  subject  to  the  rules 
of  evidence  otherwise  applicable. 
Independent  of  the  rules  of  court, 
a  certified  copy  of  a  deed  duly  re- 
corded is  prima  facie  evidence  when 
the  party  producing  it  is  not  the 
grantee,  and  the  original  deed  is 
admissible  without  proof  of  execu- 
tion in  the  same  manner  as  the 
copy.  In  Milliken  v.  Bailey,  61 
Me.  316  (1872),  it  was  held  that 
the  formalities  required  by  Equity 
Eule  25  when  once  waived  by 
counsel  on  both  sides  cannot  after- 


564 


EQUITY  PRACTICE 


§  341.  Production  of  documents  by  subpoena  duces 
tecum.  AVhere  there  are  material  documents  --  in  the 
possession  of  a  person,  not  a  party,  he  may  be  compelled 
to  produce  them,  if  desired,  by  using  the  regular  sub- 
poena duces  tecum,  specifying  such  documents  and  com- 
manding such  person  to  bring  them  with  him  to  the  place 
appointed  for  taking  evidence.-^  It  is  held  that  a  party  to 
the  suit  or  the  officer  of  a  corijoration  which  is  a  party  to 
the  suit  may  be  compelled  by  subpoena  to  produce  docu- 


wards   be   insisted   upon   by   either 
party. 

See  also  Tennessee  Eule  23; 
Delaware  Rules  49,  50;  N.  J.  Eule 
95,  relating  to  documentary  evi- 
dence. 

22.  A  document  is  defined  in  1 
Wharton  on  Evidence,  Sec.  614,  as 
"an  instrument  upon  which  is  re- 
corded by  means  of  letters,  figures 
or  marks,  matters  which  may  be 
evidentially  used.  In  this  sense  the 
term  applies  to  writings,  to  words 
printed,  lithographed,  or  photo- 
graphed, to  seals,  plates  or  stones 
on  which  inscriptions  are  cut  or 
engraved,  to  photographs  and  pic- 
tures, to  maps  and  plans.  So  far 
as  concerns  admissibility,  it  makes 
no  difference  what  is  the  thing  on 
which  the  words  or  signs  offered 
may  be  recorded.  They  may  be 
on  stones  or  gems  or  on  wood  as 
well  as  on  paper  or  parchment." 

23.  3  Greenleaf  on  Evidence 
(15th  ed.),  305;  Bull  v.  Loveland, 
10  Pick.  (Mass.)  9  (1830);  Street 
Co.  v.  Steel  Co.,  48  Fed.  191  (1891). 

The  court  of  equity  has  inherent 
power  to  compel  a  production  of 
books  and  papers  by  virtue  of  its 
inherent  and  general  jurisdiction, 
and  this  power  is  not  confined  to 
the  parties  to  the  suit  with  expense 


to  third  persons.  United  States  v. 
Terminal  R.  Association  of  St. 
Louis,  148  Fed.  486  (1906). 

The  subpoena  must  not  be  too 
broad.  Hale  v.  Henkel,  201  U.  S. 
43  (1906);  Dameel  v.  Goodyear 
S.  il.  Co.,  128  Fed.  753,  762  (1904); 
Lee  v.  Angus,  L.  R.  2  Eq.  59  (1866). 

It  should  specify  with  as  much 
precision  as  is  possible  the  particu- 
lar documents  desired,  and  describe 
any  specific  book  wanted.  Ameri- 
can Car  Foundry  Co.  v.  Alexandria 
Water  Co.,  221  Pa.  529  (1908). 

A  subpoena  duces  tecum  can  on'y 
be  used  to  compel  the  production 
of  written  instruments,  papers, 
books  or  documents.  Case  of 
Shepherd,  3  Fed.  12  (1880).  Pat- 
terns for  stove  castings  are  held 
not  to  be  subject  to  such  a  writ  of 
court  (Ibid.),  nor  a  piece  of  metal  in 
the  nature  of  a  form  or  model. 
Street  Rail  Co.  v.  Steel  Co.,  48 
Fed.  191   (1891). 

Where  documents  are  in  court, 
the  court  may  order  their  produc- 
tion for  admission  in  evidence  with- 
out the  previous  issuance  of  a  sub- 
poena duces  tecum.  Kincaide  v. 
Kavanaugh,  198  Mass.  34  (1908); 
Hunton  v.  Hurtz  &  Hosbach  Co., 
118  Mich.  473   (1898). 


EVIDENCE 


565 


raents  material  to  the  issue.-^  If  a  subpoena  duces  tecum 
is  not  obeyed,  the  person  summoned  may  be  punished  for 
contempt  on  proof  by  affidavit  that  the  documents  are 
in  his  custody.- ■"* 

§  342.  Production  of  documents  by  order  of  court. 
Under  the  earlier  practice  of  the  English  Court  of  Chan- 
cery, power  of  enforcing  the  production  of  documents 


24.  Parties.  See  Murray  v.  Elston, 
23  N.  J.  Eq.  212  (1872);  Bisehoflf- 
sheim  v.  Brown,  29  Fed.  343  (1886). 
Officers  of  corporations  which  are 
parties.  Street  R.  Co.  v.  Steel  Co., 
48  Fed.  195.  Contra,  Clark  v.  Sip- 
pie,  84  Atl.  1   (Del.  1912). 

25.  Murray  v.  Elston,  23  N.  J. 
Eq.  212  (1872).  It  is  not  neces- 
sary that  he  be  sworn  as  a  witness 
for  the  party  summoning  him. 
Martin  v.  Williams,  18  Ala.  190, 
193  (1850);  Hall  v.  Young,  37  N. 
H.  134,  142  (1858),  semble;  contra, 
Murray  v.  Elston,  23  N.  J.  Eq.  212 
(1872),  holding  that  the  subpoena 
duces  tecum  must  not  omit  the 
direction  to  testify,  otherwise  it 
will  be  invalid  and  the  person  will 
not  be  liable  for  contempt.  But  he 
is  not  bound  to  produce  the  docu- 
ment until  he  has  been  s.worn  as  a 
witness  to  enable  him  to  state  upon 
oath  the  reasons,  if  there  are  any, 
why  he  should  not  be  compelled 
to  produce  the  paper  in  evidence. 
Hall  V.  Young,  37  N.  H.  134,  142 
(1858),  semhle;  Aiken  v.  Martin,  11 
Paige  (N.  Y.)  499,  502  (1845).  A 
witness  is  not  guilty  of  contempt 
under  a  subpoena  duces  tecum 
where  it  does  not  appear  that  he 
was  given  a  sufficient  length  of 
time  to  comply  with  such  subpoena 
and  that  the  evidence  was  mater- 
ial and  proper.  Consolidated  Coal 
Co.  of  St.  Louis  V.  Jones  &  Adams 
Co.,  120  111.  App.  139  (1905). 


The  fact  that  the  subpoena  re- 
quires the  witness  to  produce  docu- 
ments that  he  cannot  lawfully  be 
required  to  produce  does  not  affect 
the  legality  of  the  issuance  of  the 
subpoena  nor  the  obligation  of 
the  witness  to  appear  in  obedience 
to  it.  Leber  v.  United  States,  170 
Fed.  881  (1909).  Nor  can  the  wit- 
ness refuse  to  produce  documents 
under  subpoena  on  the  ground  that 
the  evidence  is  immaterial  and 
irrelevant;  the  court  must  decide 
after  the  documents  are  produced. 
United  States  v.  Terminal  Associa- 
tion, 148  Fed.  486  (1906).  The 
court  will  generally  refuse  to  order 
the  opposing  party  to  produce 
documents  under  subpoena  duces 
tecum  without  an  affidavit  of  facts 
showing  that  the  evidence  is  ma- 
terial and  relevant.  Consolidated 
Coal  Co.  of  St.  Louis  v.  Jones  & 
Adams  Co.,  120  111,  App.  139  (1905). 
But  it  is  not  necessary  that  the 
court  be  satisfied  beyond  a  reason- 
able doubt  as  to  relevancy  of  testi- 
mony before  issuing  the  order. 
United  States  v.  Terminal  Associa- 
tion, supra. 

Failure  of  a  witness  to  produce 
a  paper  under  subpoena  is  justified 
by  his  testimony  that  he  has  made 
diligent  search  for  it  and  did  not 
know  where  it  was.  Lamb  v.  Lip- 
pincott,  115  Mich.  611  (1898). 


566  EQUITY  PRACTICE 

by  order  of  court  was  exercised  at  the  instance  of  the 
plaintiff  only  where  the  bill  expressly  sought  a  discovery 
of  documents  and  the  answer  expressly  admitted  the  pos- 
session and  materiality  of  the  document.  In  other  words, 
the  practice  did  not  sanction  the  idea  that  any  party  could 
make  a  simple  motion  for  an  order  requiring  his  adver- 
sary to  produce  documents  for  use  as  evidence.  This 
compelled  a  defendant  in  case  he  desired  to  inspect  a 
document  to  file  a  cross  bill  for  discovery. ^'^ 

This  practice  has  been  changed  in  several  jurisdictions 
by  statutes,  which  generally  provide  that  the  court  may 
upon  motion,  notice  and  hearing  require  the  production 
for  inspection  of  books  and  papers  in  the  possession  of 
the  opposite  party  where  access  thereto  is  refused.-^ 
Under  this  practice,  production  may  be  obtained  by 
defendant  from  plaintiff  as  well  as  by  the  latter  from  the 
defendant. 

It  is  also  held,  in  general  chancery  joractice,  that  the 

26.  2    Street's    Fed.    Equity    Pr.  courts  has  now  been  made  uniform 

Sec.  1888.  by  the  new  equity  rules.    See  U.  S. 

The  practice  of  the  various  cir-  Equity  Rule  58   (1913),  which  pro- 

cuits    of    the    Federal    courts    for-  vides  for  the  discovery,  inspection 

merly   differed   in    regard   to   com-  and    production    of    documents    at 

pelling    the    production    of    docu-  different  stages  of  the  proceedings, 

ments,    some    of    the    jurisdictions  27.  Such    statutes    are    found    in 

following  the  earlier  English  prac-  Illinois,    Maryland,    Massachusetts, 

tice  and  others  adopting  the  more  and     Mississippi.       See     Wynn     v. 

liberal  view.    See  West  Pub.  Co.  v.  Taylor,    109    111.    App.    60    (1903); 

Edward  Tompson  Co.,  151  Fed.  138  Equitable   Life   Assurance   Society 

(1907);    Utah   Const.    Co.   v.    Mon-  v.  Clark,  80  Miss.  471   (1902). 

tana  R.  R.  Co.,  145  Fed.  981  (1906) ;  In  New  Jersey  it  is  held  that  the 

Ryder    v.    Bateman,    93    Fed.    31  power   to    compel    either   party   to 

(1898);    Cort   v.   No.   Carolina   etc.  produce  documents  for  inspection  is 

Co.,  9  Fed.  577   (1881).     It  is  held,  inherent  in  a  court  of  equity  even 

however,  that  the  Federal  statute  in  absence  of  statute.     Lawless  v. 

concerning     production     of     docu-  Fleming,  56  N.  J.  Eq.  815   (1898). 

ments    in    action    at    law    has    no  And    see    Maine    Equity    Rule    26; 

application  to  suits  in  equity.    Oro  Florida    Rule    68;    Delaware    Rule 

Water,  etc.,  Co.  v.  City  of  Oroville,  24;   N.  J.  Rule  31;  U.  S.  Eq.  Rule 

162  Fed.  975   (1908).  58  (1913). 

The     practice     of     the     Federal 


EVIDENCE  567 

court  has  inherent  authority  to  order  a  defendant  to  pro- 
duce documents  in  his  possession,  provided  he  admits 
they  are  in  his  possession  or  control  and  it  satisfactorily 
appears  that  their  production  is  relevant  to  his  case.-^ 
But  in  this  connection  it  was  held  that  the  plaintiff's 
right  to  inspect  documents  is  only  co-extensive  with  his 
right  to  read  in  evidence.  The  defendant  therefore  is 
entitled  to  seal  up  or  conceal  in  any  appropriate  way  so 
much  of  any  document  produced  as  he  can  show  by  his 
affidavit  to  have  no  connection  with  the  plaintiff's  case.^^ 

§  343.  Inspection.  It  is  held  that  where  a  party  brings 
documentary  evidence  into  court  in  obedience  to  a  sub- 
poena duces  tecum,  he  has  a  right  to  object  to  its  inspec- 
tion by  his  adversary  or  its  introduction  in  evidence  before 
it  has  been  exhibited  to  any  one  but  the  court.^^ 

So  when  production  is  ordered  by  the  court,  it  is  only 
after  hearing  in  which  the  court  may  hear  any  objections 
which  either  party  may  have  to  its  being  inspected  by 
the  other  and  used  in  evidence,  and  the  court  may  first 
inspect  the  document  to'  determine  its  materiality  to  the 
issue  before  allowing  inspection  by  the  adverse  party. 
In  addition  to  the  plaintiff's  compelling  production  for 
insi^ection  by  subpoena  duces  tecum  and  the  court's  com- 
pelling it  on  motion  of  either  party,  the  court  itself  may 
also  of  its  own  accord  order  the  production  before  it  of 
any  real  evidence  for  its  better  satisfaction  as  to  the  truth. 

28.  Paine  v.  Warren,  33  Fed.  plaintiff  except  by  cross  bill  and 
357  (1888).  If  a  defendant  by  his  discovery  of  the  same.  3  Green- 
answer  submits  to  produce  certain  leaf  on  Evidence  (15th  ed.),  Sec. 
documents,      such      submission      is  302. 

binding  upon   him   and  he  will  be  29.  Campbell  v.  French,  2  Cox's 

ordered    to    produce    them    as    of  Eq.   Cas.   286;    Hunt   v.   Hewett,   7 

course.      Langdell's    Eq.    PI.    (2nd  Exch.    236,    244    (1852);    Dray    v. 

ed.),   217;   M'Intosh  v.   Ry.   Co.,   1  Merle,  2  Paige  (N.  Y.)  494  (1831). 

Macn.   &   Gord.   73.     It   is   held   in  30.  Potter   v.   Beal,   50   Fed.   860 

general   chancery   practice,   in   the  (1892);    Edison    El.    Light    Co.    v. 

absence  of  a  special  rule  of  court,  U.    S.    El.    Light    Co.,    45   Fed.    55 

that   the   defendant  cannot  compel  (1891). 
a  production  of  documents  by  the 


568  EQUITY  PRACTICE 

Thus  it  will  order  an  original  document  or  book  to  be 
produced,  in  order  to  ascertain  its  genuineness  and  integ- 
rity or  its  age,  meaning,  condition,  etc.,  or  it  will  require 
models,  machines  and  patented  articles  to  be  brought  into 
court,  or  an  infant  for  proof  of  its  age,  and  where  the  sub- 
ject is  immovable  the  court  will  order  an  inspection  by 
witnesses. ^^ 

§  344.  Evidence,  how  taken — Testimony.  According  to 
the  ancient  chancery  practice,-*^  evidence  in  equity  causes 
was  always  taken  secretly  and  by  written  interrogatories, 
but  it  is  now  provided  by  rule  or  statute  in  most  juris- 
dictions that  evidence  may  be  presented  by  oral  testi- 
mony as  well  as  by  deposition. 

In  modern  practice,  therefore,  testimony  may  be  taken 
out  in  the  following  ways:  orally  before  a  chancellor  or 
single  justice ;  orally  before  such  chancellor  or  justice  and 
a  jury  to  whom  an  issue  in  the  cause  has  been  framed  to 
guide  the  conscience  of  the  court ;  orally  before  a  master 
in  chancery  appointed  by  the  court  to  take  the  evidence 
and  determine  the  facts  upon  a  certain  issue  and  report 
his  findings  thereon  to  the  court  with  or  without  such  evi- 
dence; orally  before  a  commissioner  in  or  out  of  the  state 
appointed  by  the  court  by  virtue  of  its  inherent  power  as 
a  court  of  chancery,  to  take  the  evidence  in  writing,  on 

31.  Greenleaf  on  Ev.  (loth  etl.),  an  examiner  of  the  court,  the  other 
Sees.  328,  329.  So  where  the  in-  by  a  commissioner  appointed  by 
spection  of  the  inside  of  a  house  the  court.  The  examination  by  the 
or  of  a  room  or  of  a  lot  or  tract  examiner  took  place  when  the  wit- 
of  land  is  necessary.  See  Stock-  ness  lived  near  the  court  and  the 
bridge  Iron  Co.  v.  Car  Iron  Works,  commission  was  issued  where  the 
102  Mass.  80,  82,  88  (1869);  Reyn-  witness  lived  at  a  distance.  The 
olds  V.  Burgess  S.  F.  Co.,  71  N.  examination  by  the  examiner  was 
H.  332  (1902);  Thomas  Iron  Co.  v.  considered  to  all  intents  and  pur- 
Allentown  M.  Co.,  28  X.  J.  Eq.  77,  poses  as  an  examination  by  the 
82  (1877).  court   itself.      2   Street's   Fed.   Eq. 

32.  The   English    chancery   prac-  Pr.,  Sec.  1634. 

tice  provided  two  ways  for  the  ex-  These    methods    of   taKing  testl- 

amination  of  witnesses  on  written  mony     still     exist     except     where 

interrogatories.    One  was  by  means  changed    by    statute     or    rule     of 

of    an    examination    conducted   by  court  as  stated  in  note  33,  post. 


EVIDENCE 


569 


oatli,  over  the  signature  of  tlie  witness,  and  report  the 
same  to  the  court ;  and  by  deposition  before  an  authorized 
magistrate  in  or  out  of  the  state  to  be  used  either  before 
the  court  or  the  master,  taken  for  the  same  causes  and  in 
the  same  way  as  at  law.  The  practice  in  the  various  juris- 
dictions is  given  in  the  footnote.^^ 


33.  Alabama.  By  written  interro- 
gatories (Code,  Sec.  3141);  by  oral 
examination  taken  down  in  writing 
by  register  or  examiner  (Code, 
See.  3139)  or  orally  in  open  court 
(Kennedy  v.  Kennedy,  2  Ala.  571, 
626  (1841). 

Delaware.  On  interrogatories 
before  commissioners  (Rules  36  to 
39);  or  orally  before  examiners 
(Rules  40  to  46). 

Florida.  On  interrogatories  be- 
fore commissioners  (Rule  65) ;  or 
by  deposition  (Rule  70);  or  orally 
or  on  interrogatories  before  ex- 
aminer, or  orally  before  court  on 
order  to  that  effect.  (G.  S.,  Sees. 
1879,  1880.) 

Illinois.  By  deposition  or  by  a 
reference  to  the  master  to  take  the 
proofs  of  the  respective  parties,  or 
by  oral  testimony  on  the  hearing 
of  the  cause.  J.  &  A.,  Ch.  22, 
Hurd's   St.,  Ch.  22. 

Maine  and  Massachusetts.  By  all 
the  methods  stated  in  the  text.  Me. 
R.  S.,  Ch.  79,  Sec.  20;  Mass.  E.  L., 
Ch.  175,  Sec.  69;  Parker  v.  Nicker- 
son,  137  Mass.  487  (1884). 

Maryland.  Before  examiners 
either  by  written  interrogatories 
or  viva  voce  (Rules  37  to  44) ;  or 
orally  before  the  court  (Rule  45); 
or  by  commission  beyond  the  state 
(Rule  36).  See  Code,  Art.  16, 
Sees.  234  to  251.  When  taken 
orally,  the  evidence  may  be  taken 
down  by  a  stenographer  or  on  order 
of  the  court  it  may  be  reduced  to 


writing  by  counsel  in  the  same 
manner  as  bills  of  exceptions  at 
common  law,  signed  by  the  judge 
before  whom  it  was  taken,  and  filed 
in  the  case.  Code  1904,  Art.  16, 
Sec.  243. 

Michigan.  Before  commission- 
ers, or  orally  in  open  court  upon 
due  notice.  Hoock  v.  Sloman,  145 
Mich.  19  (1906). 

Mississippi.  Orally  in  open  court 
on  notice  in  certain  cases  (Code, 
Sec.  1764)  and  in  all  other  cases 
orally  by  consent.  In  respect  to 
the  effect  in  equity  of  the  code  pro- 
vision for  oral  testimony  in  probate 
cases,  see  Johnson  v.  Hall,  87  Miss. 
667  (1905);  Diekerson  v.  Askew,  82 
Miss.  436  (1903). 

New  Hampshire.  Suits  in  equity 
may  be  heard  upon  oral  testimony 
or  depositions  or  both.  P.  S.,  Ch. 
204,  Sec.  9. 

New  Jersey.  Before  a  master 
(Rule  44),  or  an  examiner  (Rules 
78  to  95),  or  on  commission  out  of 
the  state  (Rules  96  to  98). 

Pennsylvania.  Testimony  is 
taken  as  in  courts  of  law  upon 
rule,  commission,  letters  rogatory 
or  in  open  court.  Office  of  exam- 
iner is  discontinued.     Rules  54-59. 

Bhode  Island.  On  commission  to 
take  deposition  orally  or  upon  writ- 
ten interrogatories,  or  before  the 
court  orally,  or  upon  oral  testi- 
mony before  a  master.  Rules  35  to 
39;   G.  L.,  Ch.  289,  Sec.  17. 

Tennessee.      Methods    of    taking 


570 


EQUITY  PRACTICE 


Frequently  however,  altliougli  the  statutory  causes  for 
taking  depositions  are  wanting,  the  parties  agree  to  waive 
all  fonnalities  and  take  the  evidence  before  some  justice 
of  the  peace,  notary  public,  or  commissioner  who  is  also 
a  stenographer.  In  such  case  the  stipulation  should  be 
put  in  writing  by  the  stenographer  and  made  a  part  of  an 
informal  caption  signed  by  him,  and  the  witnesses  should 
be  sworn  and  the  depositions  signed  in  the  usual  way. 

§  345.  Evidence  taken  out  of  the  state.  Evidence  out 
of  the  state  may  be  taken  in  three  ways:  either  by  deposi- 
tion upon  a  regular  commission  to  a  magistrate  in  another 
state,  upon  written  interrogatories  filed  with  the  clerk 
as  in  actions  at  law;^^  or  by  deposition  taken  before  a 
justice  of  the  peace  or  notary  or  other  person  lawfully 
empowered  in  such  other  state,  without  a  commission, 


testimony  the  same  in  chancery 
courts  as  in  other  courts  of  the 
state  except  so  far  as  altered  by 
express  provisions  of  the  "code. 
Testimony  except  divorce  cases 
and  jury  trials  to  be  in  writing 
without  compelling  personal  attend- 
ance of  witnesses.  Code,  Sees. 
6271-6281. 

Vermont.  Before  a  master  or  a 
commissioner  (Rule  28)  or  orally 
before  the  chancellor.  (P.  S.  Sec. 
1253.) 

Virginia.  By  deposition,  but  no 
commission  to  take  the  same  is 
necessary  either  within  or  without 
the  state  unless  the  law  of  a  for- 
eign state  requires  it.  Laws  of 
1908,  p.  116. 

West  Virginia.  The  only  method 
of  taking  testimony  in  equity  is 
by  depositions  taken  before  a 
proper  officer  and  certified  by  him. 
Code  1913,  Sees.  4890  et  seq. 

United  States.  Evidence  may 
be  taken  in  open  court  (Rule  46, 
1913),     or     by     deposition     before 


examiner  or  magistrate  when  al- 
lowed by  statute,  or  for  good  and 
exceptional  cause  for  departing 
from  the  general  rule  (Rule  47, 
1913),  or  by  deposition  outside  the 
state  before  a  judge  or  magistrate 
(U.  S.  Rev.  Statutes,  Sec.  863)  or 
on  commission  to  take  depositions 
according  to  common  usage.  (U.  S. 
Rev.  Statutes,  Sec.  866).  An  order 
of  court  for  taking  testimony  orally 
does  not  prevent  a  further  order 
for  taking  a  deposition.  Magone 
V.  Colorado,  etc.,  Co.,  135  Fed.  846 
(C.  C.  1905).  It  is  not  such  "good 
jind  exceptional  cause  for  departing 
from  the  general  rule ' '  of  examin- 
ing witnesses  in  open  court  that  the 
trial  of  an  equity  case  will  occupy 
several  days.  North  v.  Herrick, 
203  Fed.  591   (1913). 

34.  Delaware  Rule  36;  Maine 
Rule  24;  N.  J.  Rule  96;  Pa.  Rule 
54;  U.  S.  Eq.  Rule  54;  and  statutes 
of  the  various  states  referred  to  in 
note  33,  ante. 


EVIDENCE  571 

such  deposition  being  admitted  or  rejected  in  the  dis- 
cretion of  the  court ;  ^^  or  the  court  has  inherent  power  as 
a  court  of  chancery,  independent  of  statute,  to  issue  a 
commission  for  the  examination  of  witnesses  either  in 
or  out  of  the  state.^^ 

§  346.  Compelling  testimony — Within  the  state. 
Where  a  person  who  has  been  duly  summoned  as  a  wit- 
ness and  had  his  fees  paid  or  tendered,  refuses  to  attend, 
or  having  attended  refuses  to  answer  ^'  any  proper  ques- 
tion, he  is  guilty  of  contempt;  and  the  court  may  issue  a 
capias  to  compel  such  attendance  or  to  commit  such  person 
until  he  shall  purge  himself  of  the  contempt  by  answering. 
Every  court  of  record  has  inherent  power  at  common  law 
to  punish  for  contempt  of  its  process  or  authority.^* 
Where  such  contempt  occurs  in  taking  evidence  before 
a  commissioner  appointed  by  the  court  or  before  a  master 
in  chancery,  it  is  not  within  the  province  of  such  com- 
missioner or  master  to  issue  a  capias  or  mittimus  for 
contempt,  but  the  proper  practice  seems  to  be  for  the  com- 

35.  See  Maine  R.  S.,  Chap.  109,  38.  Alabama.  Ex  parte  Walker, 
Sec.  20;  Maryland  Laws  of  1908,  p.  25  Ala.  81,  59  Am.  St.  Rep.  Ill,  36 
116.     It   is   held  that  such   deposi-       L.  R.  A.  84   (1854). 

tions  need  not  necessarily  conform  Florida.     Ex    parte    Edwards,    11 

to    all   the    technical    requirements  Fla.   174,  27  L.  R.  A.    (N.  S.)    273 

of   the   statute,  but   they   must   be  (1866). 

taken  by  persons  legally  competent  Maine.     Morrison   v.   McDonald, 

and  upon  due  (that  is,  reasonable)  21  Me.  550  (1842). 

notice  to  the  adverse  party.    Brown  Massachusetts.    Cartwright's 

V.  Ford,  52  Me.  479  (1864);  Harris  Case,  114  Mass.  230  (1873). 

V.  Brown,  63  Me.  51  (1873).  New  Hampshire.     State  v.  Mat- 

36.  Macaulay      v.      Shackell,      1  thews,  37  N.  H.  450  (1859), 
Bligh    (N.   S.)    96    (1827);    Una  v.  Virginia.    Carter  v.  Com.,  96  Va. 
Dodd,    38    N.    J.    Eq.    460    (1884);  791,  45  L.  R.  A.  310  (1899). 
Brown  v.  Southworth,  9  Paige  (N.  West  Virginia.     State   v.  Frew, 
Y.)   351   (1841).  24  W.  Va.  416   (1884). 

37.  A   witness    of    course    is    ex-  United  States.  Anderson  v.  Dunn, 
empt  from  answering  any  question  6  Wheat.  204,  5  L.  ed.  242  (1821). 
which    would   tend    to    incriminate  This    power    is    often    expressly 
him   or  as  to   any  privileged  com-  given  by  statute.     See   Me.   R.   S. 
munication    between    counsel    and  Chap.  79,  Sec.  2. 

client. 


572 


EQUITY  PRACTICE 


missioner  or  master,  if  the  question  is  a  proper  one,  to 
order  the  witness  to  answer  ^''  and  then  if  he  refuses,  to 
certify  the  refusal  to  the  court,^"  asking  the  court  to  order 
the  necessary  process  to  compel  such  attendance  or  answer 
or  other  act  as  the  case  may  be.  If  upon  hearing  of  both 
sides,  the  court  then  deems  it  proper  ^^  it  will  issue  the 
order,  which  will  be  entered  on  the  docket,  and  process 
will  be  issued  by  the  clerk  in  accordance  therewith  if 
necessary.  Inferior  courts  not  of  record  have  no  joower 
to  punish  for  contempt  unless  such  power  be  expressly 
given  by  statute,  but  in  the  case  of  depositions  taken  for 
statutory  causes,  it  is  sometimes  provided  by  statute  ^- 
that  a  magistrate  duly  authorized  to  take  such  depositions 
in  any  case  pending  in  that  or  any  other  state  may,  if  a 
person  has  been  legally  summoned  and  the  service  proved 


39.  Fobes  v.  Meeker,  ?,  Edw.  Ch. 
(N.  Y.)  452  (1840);  Gihon  v.  Al- 
bert, 7  Paige  278  (1838). 

In  Mississippi  it  is  provided  by 
statute  that  if  a  witness  duly  sub- 
poenaed by  a  master  fails  to  attend, 
the  master  may  issue  an  attach- 
ment.  Code  1906,  Sec.  6381. 

40.  Ala.  Code,  Sec.  3156;  Del. 
Eule  48;  Fla.  Rule  79;  Md.  Rule 
36;  Lawson  v.  Rowley,  185  Mass. 
171  (1904);  R.  I.  Rule  36;  U.  S. 
Eq.  Rule  52  (1913);  Johnson  Steel 
Rail  Co.  V.  Xorth  Branch  Steel  Co., 
48  Fed.  196  (1891);  Robinson  v. 
R.  R.  Co.,  28  Fed.  340  (1886).  In 
Illinois  a  report  of  a  master  is  the 
basis  for  attachment  for  contempt 
in  neglecting  to  obey  a  subpoena 
by  the  master,  and  must  show  that 
witness's  fees  were  paid  or  ten- 
dered. Hollister  v.  The  People,  116 
111.  App.  3.38  (1904).  See  also 
Whitcomb's  Case,  120  Mass.  118 
(1876). 

41.  It  is  held  where  evidence  is 
taken  before  a  master  that  although 


the  witness  may,  by  thus  refusing 
to  answer,  bring  the  matter  to  the 
court  itself  for  determination 
(Gihon  V.  Albert,  7  Paige  (N.  Y.) 
278  (1838)  )  yet  when  the  master  has 
ordered  a  question  to  be  answered 
as  being  material  and  proper,  it  is 
the  duty  of  the  defendant  to  an- 
swer unless  it  belongs  to  the  class 
of  questions  which  a  witness  is 
exempt  from  answering,  (viz.,  tend- 
ing to  incriminate  or  a  privileged 
communication),  and  that  the  court 
will  not  interfere  and  determine 
the  mere  relevancy  of  a  question  in 
such  a  proceeding;  and  when  a 
witness  refuses  solely  on  such 
ground  he  will  be  ordered  to  an- 
swer regardless  of  the  opinion  of 
the  court  as  to  relevancy,  where 
the  master  has  ruled  it  to  be  rele- 
vant and  required  the  witness  to 
answer.  Rusling  v.  Bray,  37  X.  J. 
Eq.  174   (1883). 

4.2.  See  Maine  R.  S.  Chap.  109, 
Sec.  29;  Mass.  R.  L.,  Ch.  175,  Sees. 
27,  40. 


EVIDENCE  573 

and  fees  paid  or  tendered,  issue  a  capias  to  bring  such 
person  before  him  if  he  fails  to  appear,  or  commit  him  to 
jail  if  he  refuses  to  testify. 

§347.  —Out  of  the  state.  It  will  thus  be  seen  that 
ample  powers  are  given  for  compelling  the  testimony  of 
witnesses  within  the  state,  but  where  it  is  necessary  to 
take  evidence  in  one  state  for  a  cause  pending  in  another 
state,  if  taken  on  simple  chancery  commission  issued  by 
virtue  of  the  inherent  power  of  the  court,  instead  of 
by  regular  commission  to  take  deposition  as  provided  by 
statute  and  rules  of  court  in  actions  at  law,  there  would 
seem  to  be  no  power  in  the  court  in  which  the  cause  is 
pending  to  compel  the  attendance  and  testimony  of  a 
resident  in  the  other  state  unless  there  should  be  a 
statute  in  that  state  giving  such  power  to  any  magis- 
trate duly  authorized  to  take  depositions  or  affidavits 
in  any  case  enumerated  therein  pending  in  that  state 
or  any  other.  If  such  statute  should  exist  and 
could  be  construed  to  include  any  magistrate  appointed 
under  a  simple  chancery  commission,  then  such  magis- 
trate might  compel  attendance  and  testimony,  other- 
wise not.  It  would  seem  to  be  the  safer  practice 
therefore,  when  it  is  desired  to  take  the  testimony  of  a 
hostile  witness,  to  have  a  regular  commission  issued 
to  take  the  deposition  of  such  witness,  as  is  generally 
provided  for  by  statute,  since  in  such  case  by  virtue  of  a 
statute  like  that  above  mentioned,  which  exists  in  most 
states,  such  magistrate  would  have  power  to  punish  for 
contempt  in  his  own  state.^^ 

43.  As    to    power    of    a    commis-  In  Puterbaugh  v.  Smith,  131  111. 

sioner  in  one  state  to  compel   tes-  199,    (1890),    it    was    held    that    a 

timony  under  commission  from  an-  statute   providing   that   a  court   on 

other     state,     see     First     National  application    of   a   notary   who   was 

Bank    v.    Graham,    175    Mass.    179  commissioned    by    a    foreign    state 

(1899);  State  v.  Ingerson,  62  N.  H.  to   take  a  deposition  could  punish 

437  (1882);  Tenn.  Code,  Sees.  5664-  for  contempt  the  refusal  of  a  wit- 

5668;    In    re   Jenckes,    6    E.    I.    18  ness    to    obey    a    subpoena    of    the 

(1859).  notary,  was  unconstitutional  in  so 


574 


EQUITY  PRACTICE 


§  348.  Objections  to  evidence.  Where  either  party 
objects  to  evidence  offered  as  being  inadmissible,  he 
should  point  out  the  particular  portion  objected  to  and 
specify  the  grounds  of  objection  in  order  that  the  other 
side  may  obviate  such  cause  if  possible,^  ^  and  all  grounds 
not  thus  specifically  pointed  out  are  deemed  to  be  waived. 
Objections  to  the  competency  of  a  witness  should  be  taken 
at  the  earliest  opportunity.^^ 


far  as  it  did  not  grant  a  jury  trial, 
since  the  proceeding  was  not  a  con- 
tempt of  the  authority  of  the 
niiuois  court,  but  merely  a  viola- 
tion of  a  statute  to  be  dealt  with 
in  an  original  proceeding.  See  also 
In  re  Kingsley,  185  Fed.  1005 
(1911). 

In  Alabama  the  courts  have  no 
statutory  authority  to  compel  the 
witness  to  answer  the  interroga- 
tories of  a  commission  issued 
from  the  courts  of  another  state. 
Ex  parte  Eueker,  108  Ala.  245 
(1895). 

In  Michigan  it  has  been  held 
that  a  statute  giving  power  to  a 
commissioner  to  compel  a  witness 
to  give  testimony  in  a  deposition 
to  be  used  in  another  state  did  not 
apply  to  parties  to  the  suit.  Matter 
of  Adams,  7  Mich.  452  (1859). 

44.  Cady  v.  Norton,  14  Pick. 
(Mass.)  236  (188.S);  Morris  v.  Hen- 
derson, 37  Miss.  492  (1859);  Bundy 
V.  Hyde,  50  N.  H.  116,  121  (1871); 
Garner  v.  State,  5  Lea  (Tenn.) 
213,  218  (1880);  Hamilton  v.  Min- 
ing Co.,  33  Fed.  562  (1887) ;  Sigafus 
V.  Porter,  84  Fed.  430,  435  (1898). 
An  objection  on  the  ground  of  ir- 
relevancy or  incompetency  is  held 
too  indefinite.  Ibid.  But  this  rule 
only  applies  where  the  objection 
can  be  removed  by  evidence  or  by 
act  of  parties  at  the  trial.     Clouser 


V.  Stone,  29  111.  114  (1862).  And  a 
general  objection  is  sufficient  when 
evidence  is  inadmissible  for  any 
purpose.  Chicago,  etc.,  Co.  v. 
Rathneau,  225  111.  278  (1907).  And 
when  the  objection  is  readily 
discernible.  Sparks  v.  Terr.,  146 
Fed.  371  (1906).  General  objection 
to  a  witness's  testimony  is  in- 
sufficient when  witness  is  com- 
petent for  some  purpose.  Brewer 
V.  Bowersox,  92  Md.  567  (1901). 
And  a  general  objection  to  several 
rulings  will  be  overruled  if  any  of 
the  rulings  were  correct.  Kirby  v. 
State,  44  Fla.  81  (1902).  A  specific 
objection  overruled  will  be  effect- 
ive to  the  extent  of  the  ground 
specified  in  the  objection,  and  can- 
not be  upheld  on  another  ground 
which  was  not  suggested  at  the 
trial.  Brown  v.  State,  44  Fla.  81 
(1903);  McCoy  v.  People,  71  111. 
Ill,  115  (1873);  Holbrook  v.  Jack- 
son, 7  Cush.  (Mass.)  136,  154 
(1851);  Weeks  v.  Hutchinson,  135 
Mich.  160  (1903);  Monteith  v. 
Caldwell,  7  Hump.  (Tenn.)  13 
(1846). 

45.  Purcell  v.  McNamara,  8  Ves. 
324;  Boone  v.  Ridgway,  29  X.  J. 
Eq.  543  (1878);  Gregory  v.  Dodge, 
4  Paige  (N.  Y.)  557  (1834).  But  if 
unknown  till  hearing  or  incurable, 
it  will  be  entertained  then.  Cal- 
laghan  v.  Rochfort,  3  Atk.  643. 


EVIDENCE 


575 


Where  tlie  evidence  is  being  taken  out  before  a  chan- 
cellor or  single  justice  or  before  such  chancellor  or  justice 
and  a  jury,^"  the  court  passes  upon  the  evidence  as  soon 
as  objected  to  and  rejects  it  at  once  if  inadmissible,^'  but 
where  it  is  taken  out  before  a  commissioner,  justice  of  the 
peace  or  notary,  it  is  not  within  the  province  of  such 
magistrate  to  pass  upon  the  admissibility  of  the  evidence 
objected  to  and  exclude  it  in  the  first  instance,  but  the 
objection  is  simply  noted  by  him  and  the  evidence  taken 
in  spite  of  it  and  its  admissibility  is  then  ultimately  sub- 
mitted to  and  determined  by  the  court  ^^  at  the  beginning 


46.  Collins  v.  Jackson,  43  Mich. 
561  (1880).  The  court  after  hold- 
ing that  before  a  commissioner,  all 
objection  must  be  reserved  for  the 
court,  said,  "It  is  very  different, 
however,  with  a  jury.  When  they 
retire  to  deliberate,  they  cannot 
pass  upon  the  competency  of  the 
evidence  in  the  case;  they  can  but 
consider  and  come  to  a  conclusion 
from  all  the  evidence  before 
them." 

47.  See  U.  S.  Eq.  Eule  46  (1913). 
The»  court  will  however  in  such 
case  only  reject  such  evidence  as 
is  clearly  and  unquestionably  in- 
admissible. Michels  v.  Western 
etc.  Association,  129  Mich.  417,  89 
N.  W.  56  (1902).  If  there  is  any 
doubt  as  to  its  admissibility,  the 
court  will  admit  it,  in  order  to 
avoid  the  necessity  of  a  rehearing 
in  the  event  of  an  erroneous  ex- 
clusion. Gordon  v.  Eeynolds,  114 
111.  118  (1885);  Merson  v.  Merson, 
101  Mich.  55  (1894);  Meech  v. 
Lee,  82  Mich.  274  (1890) ;  Dowagiac 
Mfg.  Co.  V.  Lochren,  143  Ted.  211 
(1906);  Whitehead  Etc.  Co.  v. 
O 'Callahan,  130  Fed.  243  (1904). 

48.  Elyton   Land   Co.    v.    Denny, 


108  Ala.  553  (1895);  Ala.  Eule 
65;  U.  S.  Eq.  Eules  49,  51  (1913). 

In  Eusling  v.  Bray,  37  N.  J.  Eq. 
174  (1883),  the  court  held  that  "to 
establish  or  tolerate  the  practice 
of  allowing  parties  to  suspend  the 
examination  (before  the  magis- 
trate) in  order  to  obtain  the  opin- 
ion of  the  court  as  to  the  com- 
petency of  witnesses  or  the  rele- 
vancy of  evidence,  would  greatly 
impede  and  embarrass  suitors  and 
often  prove  disastrous  to  poor  liti- 
gants. It  is  urged  that  the  record 
should  not  be  encumbered  with 
useless  material.  The  answer  is 
that  the  party  insisting  on  the  pro- 
duction of  illegal  evidence  does  so 
at  his  peril  as  to  all  the  costs  that 
shall  follow." 

In  Collins  v.  Jackson,  43  Mich. 
561  (1880),  the  court  said  "Under 
our  practice,  whether  the  evidence 
is  taken  before  a  circuit  court  com- 
missioner or  in  open  court,  all 
objections  made  to  the  competency, 
materiality  or  relevancy  of  the 
testimony  offered  must  be  reserved 
until  the  final  hearing.  This  avoids 
sending  the  case  back  because  of 
the  rejection  of  evidence,  which 
the     circuit      or     appellate     court 


576 


EQUITY  PRACTICE 


of  the  final  hearing,  in  order  that  it  may  be  known  at  the 
start  what  evidence  is  admissible  and  proper  to  be  com- 
mented upon  in  argument  and  considered  by  the  court  in 
determining  the  cause. 

Before  a  master  in  chancery  however,  the  practice  is 
different.  Since  he  is  required  to  find  the  facts  on  the  evi- 
dence introduced  before  him,  it  is  his  privilege  and  his 
duty  to  pass  upon  the  admissibility  of  evidence  offered  and 
objected  to  and  reject  it  if  improper,  and  then  if  the  party 
offering  it  finds  himself  aggrieved  thereby,  he  should  take 
exceptions  to  the  master's  report  on  that  ground.'*'^ 

§  349.  Time  for  taking  testimony.  Statutes  or  chan- 
cery rules  usually  prescribe  a  fixed  time  for  taking 
testimony,-"'"  or  provide  that  one  party  may  obtain  a  rule 


might  consider  proper  and  ma- 
terial. That  such  practice  enables 
counsel,  sometimes  in  good  faith, 
to  offer  and  introduce  evidence 
clearly  incompetent  there  is  no 
doubt,  but  as  the  evidence  must 
be  passed  upon  by  the  court  no 
harm  is  done  except  in  the  matter 
of  costs,  which  the  court  can  gen- 
erally so  regulate  as  to  prevent  any 
very  great  abuse  of  the  practice." 
49.  Gary  v.  Herrin,  62  Me.  18 
(1873);  Nichols  v.  Ela,  124  Mass. 
333  (1878);  Eusling  v.  Bray,  37  X. 
J.  Eq.  174  (1883).  Even  here  how- 
ever, the  master  should  when  re- 
quested by  the  party  offering  it 
take  the  evidence  objected  to, 
where  the  objections  have  been  su- 
stained by  him,  and  annex  such 
evidence  to  his  report  with  a  min- 
ute of  the  objections  and  his  rul- 
ing thereon.  If  his  report  is  ex- 
cepted to  on  that  ground,  and  the 
court  should  decide  that  he  was  in 
error  and  that  the  evidence  was 
material  and  its  exclusions  preju- 
dicial,   the    resummoning    of    wit- 


nesses and  parties  to  take  the  evi- 
dence will  be  avoided.  Gary  v. 
Herrin,  62  Me.  16  (1873);  Elwood 
V.  Walter,  103  111.  App.  219  (1902); 
Chadeloid  Chemical  Co.  v.  Chicago 
Wood  Finishing  Co.,  173  Fed.  797 
(1909);  Kansas  Loan  &  Trust  Co. 
V.  Electric  E.  E.  Light  &  Power 
Co.,  108  Fed.  702  (1901). 

Where  evidence  before  a  master 
is  claimed  to  be  inadmissible  it 
should  be  objected  to  at  the  time  it 
is  offered  and  exception  taken. 
Whalen  v.  Stevens,  193  111.  121 
(1901). 

50.  In  Florida  three  calendar 
months  after  filing  of  the  replica- 
tion is  the  period  permitted.  Eule 
71;  Long  v.  Anderson,  48  Fla.  279 
(1901). 

In  Michigan  the  plaintiff  must 
put  in  his  testimony  in  chief  with- 
in thirty  days  after  time  limited 
by  law  for  electing  to  take  proof 
in  open  court,  and  defendant  shall 
put  in  his  testimony  within  forty 
days  thereafter,  and  plaintiff  shall 


EVIDENCE 


577 


on  the  other  to  close  the  taking  of  testimony  within  a 
certain  period. ^^ 

§  350.  Publication.  Publication  in  chancery  practice 
is  the  open  showing  of  depositions  and  other  written  evi- 
dence and  giving  copies  of  the  same  to  the  parties  by  the 


have  ten  days  thereafter  for  re- 
buttal.    Rule  14  c. 

In  Mississippi  the  time  is  four 
months.  Code,  Sec.  1937.  One  who 
goes  to  hearing  without  objection 
before  the  expiration  of  the  time 
waives  his  right  to  further  time. 
Hart  V.  Bloomfield,  66  Miss.  100 
(1888). 

In  Tennessee  the  time  for  proof 
in  chief  is  four  months  after  the 
cause  is  set  for  hearing,  and  for 
rebutting  proof  two  months  there- 
after.    Code,  Sec.  6274. 

In  the  Federal  courts  when  depo- 
sitions are  taken,  the  plaintiff  must 
file  his  within  sixty  days  after 
cause  at  issue,  defendant  must  file 
his  within  thirty  days  from  ex- 
piration of  the  time  for  filing 
plaintiff's  depositions,  and  rebutt- 
ing .depositions  by  either  party 
within  twenty  days  after  the  time 
for  taking  original  depositions  ex- 
pires.    U.  S.  Eq.  Rule  47  (1913). 

51.  Tillotson  v.  Mitchell,  111  111. 
518    (1884). 

Md.  Code,  Art.  16,  Sec.  240 
provides  that  "After  the  lapse  of 
a  reasonable  time  for  the  taking 
of  testimony,  either  party  may  ob- 
tain a  rule  on  the  adverse  party  to 
close  the  taking  of  his  testimony 
within  such  reasonable  time  after 
notice  of  such  rule  as  may  be 
deemed  proper."  See  also  Md. 
Rule  42. 

In  Maine  there  is  no  fixed  time 
limit  for  taking  testimony.  It  is 
provided  however  by  Laws  of  1911, 
Whitehouse  E.  P.  Vol.  1—37 


Ch.  25,  that  the  "Court,  by  special 
order,  may  fix  such  time  or  times 
for  filing  answer,  plea  or  demurrer, 
or  replication,  or  for  hearing  of  the 
cause  as  justice  may  require."  It 
follows,  therefore,  that  if  either 
party  desires  to  limit  the  time  to 
be  allowed  the  other  party  for 
taking  testimony,  his  only  course 
is  to  move  the  court  to  set  the 
cause  for  hearing. 

Mass.  Equity  Rule  27  provides 
that  "At  the  expiration  of  one 
month  from  the  day  when  issue  is 
joined,  unless  the  time  being  en- 
larged for  cause  shown,  the  case 
will  be  considered  as  ready  for 
hearing." 

It  is  generally  provided  that  the 
court  may  grant  an  extension  of 
time  for  taking  testimony,  but  this 
is  a  matter  almost  wholly  in  the 
discretion  of  the  trial  court.  May- 
field  V.  Wernicke  Chemical  Co.,  65 
F!a.  113  (1913);  Ingle  v.  Jones,  9 
Wall.  486,  19  L.  ed.  621   (1869). 

In  Alabama  if  the  testimony  has 
not  been  taken  by  the  time  the 
cause  is  regularly  called  for  a  hear- 
ing "application  for  continuance 
for  want  of  testimony  must  be  in 
writing  and  conform  to  the  rule  in 
regard  to  the  continuance  of  trials 
in  the  courts  of  law."     Rule  70. 

An  order  fixing  the  time  to  close 
the  taking  of  testimony  does  not 
preclude  the  parties  from  intro- 
ducing evidence  at  the  hearing  un- 
less otherwise  agreed  to.  Tillotson 
V.  Mitchell,  supra. 


578  EQUITY  PRACTICE 

magistrate  or  clerk  of  courts  in  whose  custody  they  are. 
Where  written  evidence  is  filed  with  the  clerk  under  seal, 
it  is  the  rule  in  some  jurisdictions  that  the  seal  cannot 
be  broken  and  the  evidence  shown,  or  in  other  words 
publication  cannot  be  had,  without  an  order  of  court, 
which  is  obtained  on  motion  in  the  usual  way,  and  is 
generally  granted  as  a  matter  of  course  at  the  beginning 
of  the  hearing.-'"'^  In  other  jurisdictions  the  filing  and 
opening  of  depositions  in  the  clerk's  office  is  equivalent 
to  publication  without  any  special  order  of  court.^^  In 
the  Federal  practice  depositions  are  deemed  published 
when  filed,  unless  otherwise  ordered  by  the  court.^* 

§  351.  Evidence  on  report.  "Where  the  parties  agree  to 
liave  the  case  reported  to  a  higher  court  under  statutes  ^^ 
allowing  this  to  be  done,  the  evidence  is  generally  taken 
out  before  a  single  justice  or  a  master  in  chancery,  who 
does  not  pass  upon  the  admissibility  of  the  evidence,  but 
simply  notes  the  objection  of  the  consideration  of  the 
upper  court  as  in  a  case  of  deposition.  The  report  con- 
sists of  a  copy  of  the  certificate  of  the  presiding  justice 
stating  that  he  is  of  the  opinion  that  there  are  questions 

52.  Unfler  Florida  Rule  71  publi-  In  Maryland  there  is  no  publica- 
cation  may  be  ordered  by  any  tion,  but  objections  to  depositions 
judge  of  the  court  upon  due  notice  may  be  taken  at  the  hearing, 
to  the  parties  immediately  upon  Strike's  Case,  1  Bland  57  (1825). 
the  return  of  the  commissions  and  54.  U.  S.  Eq.  Rule  55  (1913)  pro- 
depositions,  or  it  may  at  any  time  vides  that  upon  the  filing  of  any 
pass  in  the  clerk's  office  upon  con-  deposition  or  affidavit  taken  under 
sent  of  the  parties  in  writing  and  these  rules  or  any  statute,  it  shall 
a  copy  thereof  entered  in  the  be  deemed  published  unless  other- 
order  book  or  indorsed  upon  the  wise  ordered  by  the  court.  This 
deposition.  new    rule    abolishes    the    order    of 

In    Rhode    Island    either    party  publication  required  by  former  rule 

may   move   for   the   rule   or   order.  69. 

Mumford  v.  Mumford,  13  R.  I.  19  55.  Me.  R.  S.,  Chap.  79,  Sec.  25; 

(1881).  Mass.    R.    L.,    Chap.    159,   Sec.   29; 

53.  Charles  River  Bridge  v.  War-  Nashua  R.  Corporation  v.  Boston, 
ren  Bridge,  7  Pick.  (Mass.)  344  etc.,  R.  Corporation,  169  Mass.  157 
(1829);  Simons  v.  Morris,  53  Mich.  (1897). 

155   (1884). 


EVIDENCE  579 

of  law  involved  of  sufficient  importance  or  doubt  to  justify 
the  same  and  that  the  parties  agree  thereto,  and  giving  a 
list  of  the  evidence  introduced  by  each  side  followed  by 
the  entire  record  of  the  cause  including  a  copy  of  the  bill, 
answer  and  replication  or  other  pleadings  and  of  all  the 
evidence  in  the  case.  The  report  must  be  typewritten  or 
printed,  preferably  the  latter,  and  copies  must  be  fur- 
nished to  each  party,  each  member  of  the  court  sitting, 
clerk  of  courts  and  reporter  of  decisions.  The  work  of 
arranging  the  evidence  for  the  printer,  overseeing  print- 
ing, and  reading  proofs  is  generally  done  by  the  clerk  of 
courts. 

§  352.  Evidence  on  appeal.  As  a  general  rule  the 
method  of  placing  evidence  before  the  appellate  court 
depends  upon  the  provisions  of  the  statutes  of  the  various 
jurisdictions  regulating  the  taking  of  chancery  appeals. 
In  some  states  it  is  expressly  provided  that  no  witnesses 
shall  be  heard  orally  before  the  appellate  court,  but  that 
the  cause  shall  be  heard  on  appeal  on  the  same  evidence  as 
in  the  original  hearing.  In  case  of  accident  or  mistake, 
however,  the  appellate  court  may  grant  leave  to  take  addi- 
tional -evidence  in  such  manner  and  on  such  terms  as  it 
may  deem  proper.^'"' 

56.  Me.  R.  S.,  Ch.  79,  Sec.  32; 
Mass.  R.  L.,  Ch.  159,  Sec.  24;  E.  I. 
G.  L.,  Ch.  289,  Sec.  30. 


CHAPTER  XX 


MASTERS  IN  CHANCERY 


§  353.  Appointment  of  masters.  In  most  jurisdictions 
it  is  provided  by  rule  or  statute  that  the  court  may  appoint 
standing  masters  not  to  exceed  a  certain  number,  who 
are  to  perform  the  duties  pertaining  to  their  office  accord- 
ing to  equity  practice.  There  are  also  provisions  for  the 
appointment  of  special  masters  in  decrees  or  orders  of  ref- 
erence, either  by  consent  of  the  parties,  or  upon  appli- 
cation of  either  party,  or  where  the  regular  master  may 
be  disqualified  from  acting.^ 


1.  In  Alabama  the  register  "per- 
forms the  duties  of  master,  unless 
otherwise  ordered  by  the  chan- 
cellor."   Code,  Sec.  3074. 

In  Pennsylvania  the  office  of  a 
master  in  chancery  has  been  dis- 
continued except  in  proceedings 
where  decrees  or  interlocutory 
orders  are  to  be  executed  or  their 
execution  supervised  by  an  officer 
of  the  court.     Pa.  Eq.  Rule  60. 

In  the  Federal  courts,  U.  S.  Eq. 
Rule  59  (1913)  provides  that  "save 
in  matters  of  account,  a  reference 
to  a  master  shall  be  the  exception 
not  the  rule,  and  shall  be  made 
only  upon  a  showing  that  some  ex- 
ceptional condition  requires  it." 

Where  the  regular  master  is  a 
party  to  the  suit,  a  special  master 
should  be  appointed.  Gilliam  v. 
Baldwin,  96  111.  App.  323  (1901). 

In  Massachusetts  it  is  the  prac- 
tice to  refer  to  a  special  master 
where  there  has  been  no  previous 


reference  to  a  standing  master. 
Eastern  Bridge  &  Structural  Co.  v, 
Worcester  Auditorium  Co.,  103  N. 
E.  913  (1914). 

A  relative  of  a  litigant  should 
not  be  appointed  master.  Purvis  v. 
Frink,  57  Fla.  519  (1909).  Nor  a 
solicitor  in  the  cause.  Wilheit  v. 
Pierce,  47  111.  413  (1868);  Brown  v. 
Byrne,  Walk.  (Mich.)  453  (1844); 
Bowers  v.  Bowers,  29  Grat.  (Va.) 
697  (1878). 

Disqualification  of  chancellor  ex- 
tends to  the  master,  at  least  where 
exercising  a  judicial  function.  Mor- 
rill V.  Sneed,  121  Tenn.  173  (1908). 

In  Vermont  when  causes  in  chan- 
cery involve  controverted  questions 
of  fact,  the  court  upon  application 
of  either  party,  may  appoint  not 
exceeding  three  special  masters, 
who  shall  be  sworn  before  entering 
upon  their  duties.  Public  Stat., 
Sec.  1261,  as  amended  by  No.  56 
P.  Acts  1908. 


580 


MASTERS  IN  CHANCERY 


581 


§  354.  General  nature  of  office.  A  master  in  cliancery 
is  an  officer  appointed  by  the  court  to  assist  in  the  various 
proceedings  incidental  to  the  progress  of  a  cause,  by  tak- 
ing out  evidence  and  determining  the  facts  upon  some 
special  issue  or  branch  of  the  case  which  may  be  referred 
to  the  master  by  the  court,  or  by  performing  any  min- 
isterial acts  desired  by  the  court.- 

§  355.  What  may  be  referred  to  a  master.  It  would  be 
impracticable  to  attempt  to  enumerate  all  the  matters 
which  may  properly  be  referred  to  a  master,  but  in  gen- 
eral it  may  be  stated  that  references  to  masters  are  for 
the  following  purposes:  1,  to  make  inquiries,  either  as 
to  persons,  such  as  ascertaining  who  are  the  creditors  of 
a  certain  person, "^  or  as  to  matters  of  fact,  as  in  determin- 
ing the  undivided  interests  of  parties  in  a  bill  for  parti- 
tion; ^  2,  to  take  accounts  and  make  computations,  as  in 


It  is  immaterial  that  the  order 
of  appointment  of  a  master  is  not 
signed  by  the  judges  of  the  court 
provided  it  is  entered  on  the  record. 
Gottschalk  v.  Nqyes,  225  111.  94 
(1907). 

In  Illinois  a  woman  is  eligible  to 
hold  the  office  of  master  in  chan- 
cery. Schuchardt  v.  The  People, 
99  111.  501  (1881). 

A  master  is  only  removable  by 
the  court  of  chancery.  In  re  Eaisch, 
90  A.  12   (N.  J.,  1912). 

2.  It  has  been  said  that  masters 
in  chancery  are  not  judicial  but 
ministerial  officers.  Ennesser  v. 
Hudek,  169  111.  494  (1897). 

Or  quasi  judicial  officers.  Moun- 
tain Lake  Land  Co.  v.  Blair,  109 
Va.  147  (1909). 

3.  Dan.  Ch.  Pr.,  (6th  Am.  ed.),  p. 
1204.  So  in  a  creditor's  bill,  filed 
on  behalf  of  the  plaintiff  and  of  all 
other  creditors  that  choose  to  come 
in  and  share  the  expenses  for  the 
purpose    of   securing   due    adminis- 


tration and  application  of  a  trust 
fund,  it  is  the  usual  and  correct 
course  to  open  a  reference  in  the 
master's  office  and  to  give  other 
creditors,  having  valid  claims 
against  the  fund,  an  opportunity  to 
come  in  and  have  the  benefit  of  the 
decree.  Water  Co.  v.  DeKay,  36 
N.  J.  Eq.  548  (1883);  Stewart  v. 
Dunham,  115  U.  S.  61,  64  (1884); 
Johnson  v.  Waters,  111  U.  S.  640 
(1883). 

4.  Phelps  V.  Green,  3  Johns.  Ch. 
(N.  Y.)  302  (1818).  In  State  v.  Mc- 
Intyre,  53  Me.  214  (1865),  a  mas- 
ter was  appointed  to  assess  dam- 
ages without  consent  of  parties; 
in  Baily  v.  Myrick,  52  Me.  132 
(1861),  to  estimate  value  of 
premises  mortgaged;  in  Drew  v. 
Wakefield,  54  Me.  291  (1865),  to 
determine  the  reasonable  costs  and 
charges  in  the  cause;  in  Shute  v. 
Sturm,  6  Baxter  (Tenn.)  139 
(1873),  on  question  of  fraud  in 
transfer  of  note,  to  determine  the 


582 


EQUITY  PRACTICE 


detemiining  the  amount  due  under  a  mortgage  or  lien;  ^ 
3,  to  perform  any  special  ministerial  acts  desired  by  the 
court.*^ 


value  of  services  constituting  the 
consideration  of  the  transfer;  in 
Eohrer  v.  Travers,  11  W.  Va.  146 
(1877),  to  determine  payments  of 
interest  in  an  inquiry  as  to  the 
existence  of  usury;  in  Mason  v. 
Carrothers,  105  Me.  392  (1909),  to 
ascertain  the  value  of  promoter's 
services;  in  Bennett  v.  Danville, 
56  N.  H.  216  (1875),  on  petition 
of  the  tenant  for  life  to  determine 
whether  it  would  be  for  the  benefit 
of  the  estate  that  any  portion  of 
the  wood  and  timber  thereon  should 
be  cut;  in  Wilson  v.  Wood,  17  N.  J. 
Eq.  216  (1865),  to  ascertain  what 
are  usual  covenants  in  a  deed  ac- 
cording to  local  usages;  and  in 
Stahl  V.  Stahl,  220  111.  188  (1906), 
to  ascertain  rents  and  profits. 
Where  a  plea  sets  up  matter  of 
fact,  the  truth  of  which  may  be 
immediately  ascertained  by  mere 
inquiry,  it  is  usually  referred  to 
one  of  the  masters  of  the  court  to 
make  the  inquiry.  Mitf.  Eq.  PI. 
(Tyler's  ed.)  392;  Dietrich  v. 
Deavitt,  81  Vt.  160  (1908);  Silver 
Mining  Co.  v.  Silver  Mining  Co., '17 
Blatchf.  389  (1880). 

In  a  bill  to  redeem,  the  question 
of  the  amount  due  under  the  mort- 
gage should  be  referred  to  the 
master  rather  than  the  court. 
Bartlett  v.  Fellows,  47  Me.  53 
(1859);  Jewett  v.  Guild,  42  Me. 
246  (1856). 

The  question  of  the  identity  of 
the  parties  and  of  the  causes  of 
action  may  also  be  included  in  the 
reference.  Tarleton  v.  Barnes,  2 
Keen  635;  Wild  v.  Hobson,  2  Ves. 
&  B.  110. 


Where  damages  are  not  more 
than  a  few  dollars,  refusal  of  a 
reference  to  a  master  to  ascertain 
the  amount  is  proper.  Giragosian  v, 
Chutjian,   194  Mass.  504   (1906). 

5.  Moffett  V.  Hanner,  154  111. 
649  (1895);  Paul  v.  Frye,  80  Me. 
26  (1887),  bill  for  specific  per- 
formance; Burleigh  v.  White,  70 
Me.  130  (1879),  partnership  ac- 
count; Miller  v.  Whittier,  36  Me. 
577  (1853),  account  of  amount  due 
on  notes;  Walker  v.  Joiner,  52  Miss. 
789  (1876);  Pepper  v.  Addicks,  153 
Fed.  383  (1907). 

The  court  may,  if  it  sees  fit,  take 
the  account  itself,  but  the  practice 
is  condemned  in  complicated  cases. 
French  v.  Gibbs,  105  111.  523 
(1883);  Campbell  v.  Campbell's 
Adm'r,  8  N.  J.  Eq.  738,  743  (1851); 
Gray  v.  State,  95  Tenn.  317  (1895); 
St.  Colombe  v.  United  States,  7 
Pet.  625  (1833). 

A  reference  to  a  master  to  re- 
port the  respective  amounts  due 
the  several  interested  parties  in  a 
suit  for  the  adjustment  of  liens  is 
unnecessary  where  no  complicated 
accounts  are  involved,  the  amounts 
due  the  respective  parties  resting 
only  in  computation  after  a  deter- 
mination of  their  rights.  Chicago 
&  G.  W.  R.  Land  Co.  v.  Peck,  112 
111.  408  (1885),  and  see  Belleville 
v.  Citizens'  Horse  R.  Co.,  152  111. 
171,  26  L.  R.  A.  681  (1894);  Pepper 
V.  Addicks,  153  Fed.  383  (1907). 

6.  Min.  Co.  V.  Mason,  145  U.  S. 
149,  36  L.  ed.  732  (1891).  Thus  in 
Drew  V.  Wakefield,  54  Me.  291 
(1866),  in  a  bill  to  execute  a  trust, 
the    master    was    directed    to    take 


MASTERS  IN  CHANCERY 


583 


It  is  not  proper  to  refer  abstract  questions  of  law  to  a 
master "'  except  that  an  inquiry  may  be  directed  into  the 
law  of  a  foreign  country,^  which  is  really  a  question  of 
fact.  Exceptions  for  scandal,  impertinence,  or  insuffi- 
ciency in  the  pleadings  may  also  be  referred  to  a  master.'-^ 

A  master  is  not  usually  required  to  act  merely  as  a  com- 
missioner to  take  and  report  testimony  without  more,  as 
any  ordinary  magistrate  might  do.  He  is  an  officer  of  the 
court  appointed  to  find  and  report  the  facts  on  the  evi- 
dence introduced  before  him.^'^ 

It  is  not  competent  for  a  court  of  chancery  to  refer  to  a 
master  the  entire  decision  of  the  whole  cause  upon  all  the 
issues  both  of  fact  and  of  law,  without  the  consent  of 
the  parties.^ ^ 


and  report  a  plan  of  distribution 
of  the  estate  to  be  proposed  before 
him  by  the  trustees. 

7.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p. 
1203;  De  Lenn  v.  Neely,  71  111. 
473  (1874);  Shipman  v.  Fletcher, 
91  Va.  473  (1895).  Thus  when  a 
case  is  referred  to  a  master  to 
determine  the  amount  due  under  a 
mortgage,  he  has  no  right  to  decide 
titles  to  the  estate  mortgaged 
Howe  V.  Eussell,  36  Me.  115  (1853) 

8.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p 
1215;  M'Comb  v.  Wright,  4  Johns 
Ch.  (N.  Y.)  659  (1820). 

9.  Adams  Eq.  (7th  Am.  ed.)  380; 
Polk  V.  L.  Assoc.  128  Fed.  524 
(1904).  See  Ch.  V,  "Original 
Bills,"  Sec.  108,  ante,  p.  200;  Ch. 
XIII,  "Answers,"  Sees.  274  to  276, 
ante,  pp.  473  et  seq. 

10.  Simmons  v.  Jacobs,  52  Me. 
153  (1862);  Kansas  City  Loan  & 
Trust  Co.  V.  Electric  Ey  Co.,  108 
Fed.  702,  704  (1901). 

In  a  suit  for  an  accounting  the 
master  should  not  be  ordered  sim- 
ply to  take  testimony,  but  the  case 


should  be  referred  to  him  to  state 
an  account  and  report  the  same  to 
the  court.  Weary  v.  Andrews,  58 
111.  App.  380   (1895). 

Sometimes,  however,  a  reference 
is  made  merely  for  the  purpose  of 
taking  testimony.  Grob  v.  Cush- 
man,  45  111.  119  (1867). 

An  order  of  reference  to  take 
testimony  is  unnecessary  but  harm- 
less where  the  officer  already  has 
power  to  take  it.  Breese  v.  Brad- 
field,  99  Va.  331  (1901). 

Where  the  court  has  itself  taken 
evidence  the  case  may  be  referred 
to  a  master  to  take  other  evidence 
and  the  court  may  decide  the  case 
on  all  the  testimony.  Kenealy  v. 
Glos,  241  111.  15   (1909). 

Testimony  on  which  an  account 
is  based  can  be  taken  before  refer- 
ence to  a  master.  Wofford  v.  Ash- 
craft,  47  Miss.  641  (1873). 

11.  Eubank  v.  Wright,  2  Tenn. 
Ch.  538  (1875);  Kimberly  v.  Ames, 
129  U.  S.  512,  524  (1888);  Garinger 
V.  Palmer,  126  Fed.  906  (1904).  But 
when  the  parties  consent,  it  is  fre- 


584 


EQUITY  PRACTICE 


§  356.  When  a  reference  may  be  ordered.  A  decree  of 
reference  should  not  be  made  to  a  master  without  a  pre- 
liminary decree  by  the  court  determining  so  far  as  pos- 
sible all  matters  of  law,  together  with  the  issues  made  by 
the  pleadings  and  the  general  rights  of  the  parties;  and  a 
reference  to  the  master  may  be  ordered  for  such  sjiecial 
inquiries  or  statement  of  accounts  as  may  aid  the  court 
in  making  a  definite  final  decree.^-  It  is  held  that  the 
court  has  no  power  to  order  a  reference  to  take  an  account 
before  a  hearing  of  the  cause  on  its  merits,  except  by  con- 
sent of  the  parties.  The  chancellor  must  first  be  satis- 
fied that  the  plaintiff  is  entitled  to  have  an  account  taken.^^ 


quently  done  in  modern  practice. 
See  Pitman  v.  Thornton,  65  Me. 
95  (1876),  where  the  whole  cause 
was  referred  to  a  referee. 

12.  lUinois.  Moffitt  v.  Hanner, 
154  111.  649  (1895). 

New  Jersey.  Hudson  v.  Trenton 
Locomotive,  etc.,  ^Ifg.  Co.,  16  N.  J. 
Eq.  475  (1863). 

Tennessee.  Carey  v.  Williams,  1 
Lea   (Tenn.)  51   (1878). 

Virginia.  Reager  v.  Chappelear, 
104  Va.  14  (1905);  Cogbill  v.  Boyd, 
74  Va.  1  (1884). 

West  Virginia.  Goff  v.  McBee, 
47  W.  Va.  lo.'.  (1S99). 

United  States.  Penn.  Steel  Co. 
V.  New  York  City  Ry.  Co.,  202  Fed. 
296  (1912);  Ward  v.  R.  Co.,  4  Fed. 
862   (1880). 

13.  Campbell  v.  Campbell 's 
Admr.,  8  N.  J.  Eq.  738,  743  (1851) ; 
Wessells  v.  Wessels,  1  Tenn.  Ch. 
58  (1872);  compare  McAuslan  v. 
McAuslan  83  Atl.  837  (R.  L  1912). 

It  is  improper  to  order  reference 
before  time  to  answer  has  expired. 
Moreland  v.  Metz,  24  W.  Va.  119, 


49  Am.  Rep.  246  (1884).  Or  before 
issue  is  complete  by  answers  or  de- 
crees pro  confesso  against  all  the 
defendants.  Louisville  Mfg.  Co.  v. 
Brown,  101  Ala.  273  (1893). 

Before  accounting  ordered  there 
must  be  suflScient  evidence  to  de- 
termine the  right  thereto.  Planters' 
Bank  v.  Stottman,  Freem.  (Miss.) 
503  (1840);  Baltimore  Steam 
Packet  Co.  v.  Williams,  94  Va.  422 
(1897). 

The  court  cannot  decree  an  ac- 
counting for  the  purpose  of  fur- 
nishing evidence  in  support  of  the 
bill.  Sadler  v.  Whitehurst,  83  Va. 
46  (1887). 

A  reference  to  take  account  be- 
fore the  rights  of  the  parties  are 
determined  is  cured  by  a  decree 
determining  them  before  the  report 
comes  in.  Tucker  v.  Hadley,  52 
Miss.  414   (1876). 

In  Alabama  under  rule  1  of  the 
chancery  practice  the  making  of 
an  order  of  reference  out  of  the 
regular  term  is  authorized.  Whit- 
stone  V.  McQueen,  137  Ala.  301 
(1903). 


MASTERS  IN  CHANCERY  585 

But  a  reference  before  a  decree  upon  the  rights  of  the  par- 
ties is  admissible  if  done  by  consent.^^ 

§  357.  The  order  of  reference.  A  reference  to  a  master 
may  be  ordered  by  the  court  of  its  own  motion,  without 
the  consent  of  the  parties;  ^^  or  in  its  discretion  on  the 
motion  of  either  party,  and  by  the  consent  of  both  parties 
in  almost  any  case.  Such  an  order  is  interlocutory  when 
made  for  a  judicial  purpose,  but  it  may  be  final  when 
made  for  a  ministerial  purpose  only.^*^  The  order  is  in  the 
form  of  a  decree  framed  and  signed  by  the  court  in  the 
usual  way.  It  should  state  specifically  the  question  or 
issue  to  be  determined  by  the  master  or  the  duties  to  be 
performed  by  him.  If  necessary  it  should  give  special 
directions  as  to  the  manner  of  performing  such  duties,  as 
for  instance  in  taking  an  account,^^  and  should  state  just 
what  shall  be  included  in  the  master's  report,  as  for  ex- 
ample, whether  the  evidence  or  any  portion  of  it  shall 
be  reported  in  addition  to  his  findings. 

The  order  of  reference  cannot  be  more  extensive  than 
the  allegations  and  proofs  of  the  parties, ^^  The  general 
language  of  the  order  must  be  construed  in  connection 

14.  Wessells  v.  Wessells,  1  Tenn.  16.  Chenery  v.  Gleason,  125  Mass. 
Ch.  58  (1872),  semble.  Acquies-  166  (1878) ;  McGourkey  v.  Ry.  Co., 
cence    in    a    premature  .  reference       146  U.  S.  536  (1892). 

ratifies  it.     Dunn  v.  Dunn,   8  Ala.  The     chancellor's     discretion     in 

784  (1845).  referring  a  cause  to  a  master  will 

Irregularity    of    taking    a    refer-  not  be  disturbed  in  the  absence  of 

ence   to   and   proceedings   before   a  abuse.      Harding   v.    Harding,    180 

master    without    a    formal    joinder  111.  481   (1899). 

of  issues  may  be  waived.    Patter-  17.  Owens    v.    Rhodes,     10    Fla. 

son  V.  Johnson,  214  111.  481  (1904).  319     (1863);     Hudson    v.    Trenton 

15.  Millard  v.  Millard,  221  111.  86  Mfg.  Co.,  16  N.  J.  Eq.  475  (1863); 
(1906);  State  v.  Mclntyre,  53  Me.  Carey  v.  Williams,  1  Lea  (Tenn.) 
214    (1865);    Babcock  v.   De  Mort,  51  (1878). 

160  Fed.  882   (1908).  18.  Alabama.  Levert  v.  Redwood, 

An  irregularity  in  referring  the  9  Port.  79  (1839). 

cause  is  waived  by  proceeding  be-  Massachusetts.     Newton    Rubber 

fore  the  master  without  objection.  Works  v.  De  Las  Casas,  182  Mass. 

Dudley  v.  Eastman,   70  N.  H.  418  436  (1902). 

(1900);   Dewing  v.  Hutton,  48  W.  Micliigan.  Ward  v.  Jewett,  Walk. 

Va.  576  (1900).  Ch.  45  (1842). 


586 


EQUITY  PRACTICE 


with  the  pleadings.  Such  decretal  order  is  the  rule  for 
the  guidance  of  the  master. ^^  His  authorit}^  as  to  the  sub- 
jects and  extent  of  his  examination  and  report  is  limited 
and  controlled  by  the  order  -"'  and  the  issues  made  by  the 
pleadings.-^  So  where  a  question  of  fraud  presented  by 
the  pleadings  has  been  decided  by  the  court  and  sent  to  a 
master  to  detenuine  the  amount  due,  the  master  cannot 
re-examine  the  question  of  fraud.--  Likewise  where  a  ref- 
erence has  been  made  to  a  master  to  detenuine  the  amount 
due  on  a  mortgage,  he  cannot  decide  the  title  to  the  estate 
mortgaged.-^ 


New  Jersey.  Wyckoff,  Exr.  v. 
Combs,  28  X.  J.  Eq.  40  (1877). 

New  York.  Consequa  v.  Fanning, 
3  Johns.  Ch.  (N.  Y.)  587  (1818). 

Tennessee.  Williams  v.  Bartlett, 
11  Lea  620  (ISSO). 

19.  Alabama.  Henderson  v. 
Huey,  45  Ala.  275   (1871). 

Maine.  Simmons  v.  Jacobs,  52 
Me.  147  (1862). 

New  Jersey.  Blauvelt  v.  Acker- 
man,  20  X.  J.  Eq.  141  (1869). 

Tennessee.  Maury  v.  Lewis,  10 
Yerg.   (Tenn.)    115   (1836). 

West  Virginia.  Bland  v.  Stewart, 
35  W.  A'a.  518  (1891). 

United  States.  Terry  v.  Bobbins, 
122  Fed.  725  (1903). 

20.  Blauvelt  v.  Ackerman,  20  X. 
J.  Eq.  141  (1869);  Updike  v.  Doyle, 
7  R.  L  446  (1863);  Gore  v.  Poleet, 
48  S.  W.  464  (Tenn.  Ch.  1896); 
Bland  v.  Stewart,  35  W.  Ya.  518 
(1891);  Felch  v.  Hooper.  4  Clifford 
(U.  S.)  489  (1878). 

So  where  the  reference  is  to  find 
and  report  the  facts,  it  is  no  part 
of  the  master's  duty  to  inquire  or 
report  whether  or  not  the  court 
has  jurisdiction  of  the  parties  or 
of  the  subject  matter.  Smith  v. 
Eock,  59  Yt.  232  (1886). 

If  the  master  reports  as  to  mat- 


ter which  is  not  referred  to  him, 
his  report  so  far  as  it  relates  to 
that  matter  is  a  nullity.  White  v. 
Walker,  5  Fla.  478  (1854). 

Where  the  master  allows  the 
hearing  to  go  beyond  the  object  of 
the  suit,  a  party  who  suffers  no 
injury  thereby  will  not  be  heard  to 
complain.  Arnold,  Abney  &  Co.  v. 
Slaughter,   36   W.   Ya.   589    (1897). 

The  order  of  reference  will  be 
given  a  liberal  construction  in 
order  to  effect  its  purpose.  Dunn 
V.  Stowers,  104  Ya.  290   (1905). 

21.  Levert  v.  Eedwood,  9  Port. 
(Ala.)  79  (1839);  Xewton  Rubber 
Works  v.  De  Las  Casas,  182  Mass. 
436  (1903);  Ward  v.  Jewett,  Walk. 
(Mich.)  45  (1842);  Williams  v. 
Bartlett,  4  Lea  (Tenn.)  620  (1880); 
Rubber  Co.  v.  Goodyear,  9  Wall. 
788  (1869). 

22.  Gilmore  v.  Gilmore,  40  Me. 
50  (1855). 

23.  Howe  V.  Russell,  36  Me.  115 
(1853).  See  also  Izard  v.  Bodine, 
9  X.  J.  Eq.  309  (1853).  So  a  master 
cannot  properly  change  the  order 
of  priority  of  incumbrances  as 
given  in  a  bill  of  foreclosure  and 
established  by  a  decree  pro  con- 
fesso.  Mulford  v.  Williams,  8  X.  J. 
Eq.  536   (1851). 


MASTERS  IN  CHANCERY 


587 


§358.  Setting-  reference  for  hearing.  The  next  steps 
after  the  decretal  order  for  a  reference  to  a  master  has 
been  filed  are  generally  prescribed  by  chancery  rules. 
These  provide  that  the  master  shall  within  a  certain  time  ^^ 


24.  In  Alabama  the  party  for 
whose  benefit  the  reference  is  made 
must  cause  the  matter  to  be  pre- 
sented to  the  register  within  the 
time  limited  for  the  hearing,  and 
if  no  time  limited  within  three 
months  after  the  reference  is  made. 
Code,  Sec.  3157.  And  he  shall  as- 
sign a  time  and  place  and  give 
reasonable  notice  (Sec.  3158)  which 
in  absence  of  special  order  is  one 
day  in  term  time  and  five  days  in 
vacation.     Eules  151,  91. 

In  Florida,  reference  must  be 
presented  to  master  for  hearing  on 
or  before  the  next  rule  day  suc- 
ceeding the  time  when  reference 
was  made  or  within  the  time  lim- 
ited by  the  court,  and  master  shall 
assign  time  and  place  for  hearing 
as  soon  as  he  reasonably  can  there- 
after.    Eules  76,  77. 

In  Maine  and  Massachusetts, 
upon  the  application  of  either  party 
the  master  shall  assign  a  time  and 
place  for  a  hearing  which  shall  be 
not  less  than  ten  days  thereafter. 
At  least  seven  days  before  the 
time  appointed  for  the  hearing  the 
party  obtaining  the  reference  shall 
give  the  adverse  party  notice  in 
writing  of  such  time  and  place  and 
make  proof  thereof  to  the  master. 
(In  Massachusetts  the  summons  is 
used  instead  of  a  notice,  except  in 
the  probate  court.)  Me.  Eq.  rule 
30;   Mass.  Eq.  Eule  30. 

In  Maryland,  party  for  whose 
benefit  a  reference  is  made  shall 
present  it  to  auditor  within  a 
reasonable  time  and  the  auditor  as 
soon    as    he    reasonably    can    shall 


assign  time  and  place  for  hearing 
and  give  notice.     Rules  53,  54. 

In  New  Jersey,  master  shall  as- 
sign a  time  and  place  of  hearing 
and  party  obtaining  reference  shall 
give  at  least  four  days'  notice  to 
adverse  party.     Eule  43. 

In  Ehode  Island,  the  master  as 
soon  as  he  reasonably  can  after 
reference  is  brought  before  him 
shall  assign  time  and  place  for 
hearing  and  give  notice.     Eule  35. 

In  Tennessee  as  to  hearing  on 
reference  to  take  account  see  Eule 
4. 

In  Vermont,  the  master  shall  give 
six  days'  notice  of  time  and  place 
of  hearing.     Eq.  Eule  37. 

In  Federal  courts,  reference  must 
be  presented  to  master  within 
twenty  days  and  as  soon  as  he 
reasonably  can,  he  shall  assign  a 
time  and  place  for  hearing  and 
give  notice.  U.  S.  Eq.  Eules  59, 
60  (1913). 

If  the  master  reports  that  he 
"gave  I'easonable  notice  to  each 
and  all  of  the  said  defendants,"  of 
the  time  and  place  appointed  by 
him  for  the  hearings  of  the  parties, 
it  is  sufficient  in  absence  of  any 
evidence  to  the  contrary.  If,  after 
reasonable  notice,  he  proceeds  in 
the  absence  of  the  defendant,  his 
report  cannot  be  successfully  ob- 
jected to  as  being  ex  parte.  State 
v.  Mclntyre,  53  Me.  214  (1865). 

Cases  holding  that  the  master 
must  give  notice  of  hearing:  Bal- 
lard v.  Lippman,  32  Fla.  481 
(1893);  Whiteside  v.  Pulliam,  25 
111.  257  (1861);  Gaines  v.  Coney,  51 


588  EQUITY  PRACTICE 

assign  a  time  and  place  for  a  hearing  and  give  notice  of 
the  same  to  all  parties  in  interest.  If  any  of  the  adverse 
parties  fail  to  appear  at  the  time  and  place  designated,  it 
is  generally  provided  that  the  master  may  proceed  ex 
parte. 

§  359.  Hearing  before  master.  The  general  rule  is  that 
all  persons  beneficially  interested,  whether  actual  parties 
to  the  suit  or  such  as  have  become  quasi  parties  by  having 
come  in  and  established  a  claim,  are  entitled  to  attend  on 
the  hearing  before  the  master  whenever  the  object  is  such 
as  may  affect  their  interests  or  increase  or  diminish  their 
proportion  in  the  fund.-^  Under  the  former  English  prac- 
tice it  was  always  necessary  as  a  preliminary  step  at  a 
hearing  before  a  master  and  as  a  foundation  for  the  exami- 
nation of  witnesses,  for  the  party  seeking  the  reference  to 
frame  and  present  to  the  master  a  "state  of  facts"  as  it 
was  called,  stating  what  such  party  expected  to  prove.^*^ 
But  this  proceeding  is  now  obsolete  in  our  practice,  the 

Miss.  323   (1875);  Holt  v.  Holt,' 37  A  party  waives  right  to  formal 

W.  Va.  305  (1893).  notice  if  he  has  actual  notice  and 

Where  rules  do  not  designate  the  takes  part  in  the  reference.   Prince 

length   of   notice  it   is   left  to  'the  v.  Cutler,  69  111.  267  (1873). 

discretion    of    the    master,    but    it  Objection     to     want     of     notice 

must  be  reasonable  under  the  cir-  must  be  taken  in  the  lower  court, 

cumstances.      Strang    v.    Allen,    44  Sanders    v.    Dowell,    7    Sm.    &    M. 

111.  428   (1867).    See  also  Moore  v.  (Miss.)   206   (1846). 

Bruce,  85  Va.  139  (1888).  Notice  to  the  solicitor  of  a  party 

A  notice  directed  to  be  published  is  sufficient.     Ala.  Code,  Sec.  3158; 

on  account  of  the  large  number  of  Whiteside   v.    Pulliam,   25   111.   257 

parties  is  sufficient  if  it  gives  the  (1861). 

style   of   the   suit   without   naming  The  master  may  hold  hearings  in 

all   the   parties.      Martin   v.   South  places  where  the  records  are  avail- 

Salem  Land  Co.,  94  Va.  28  (1896).  able.     McCullough   v.   McCuUough, 

It  is  unnecessary  to  give  notice  238  111.  50  (1909). 

of    a    reference    to    be    determined  25.  Adams  Eq.   (7th  ed.)  p.  383; 

upon    the    pleadings    of    facts    al-  f'raig  v.  McKinney,  72  111.  305,  314 

ready  before  the  court.     Michigan  (1874). 

Insurance     Co.     v.     Whitmore,     12  26.  See   Dan.    Ch.   Pr.    (6th   Am. 

Mich.   427    (1864);    Cobb   v.   Duke,  ed.)   p.   1199. 
36    Miss.    60 ,   72     Am.     Dec.     157 
(1858);  Miss.  Code,  See.  642. 


MASTERS  IN  CHANCERY  589 

decretal  order  of  reference  being  regarded  as  a  sufficient 
guide  for  the  master  and  adequate  foundation  for  the 
introduction  of  testimony.  The  order  of  procedure  at  a 
hearing  before  the  master  is  practically  the  same  as  at  all 
hearings.  The  evidence  of  the  plaintilf  is  introduced  first, 
followed  by  that  of  the  defendant  and  then  by  the  plaintiff 
in  rebuttal,  if  he  should  so  desire.  The  counsel  on  either 
side  may  then  be  heard  if  desired,  on  the  questions  of 
fact  involved.  It  is  not  the  general  practice  for  the  court 
to  interfere  with  the  master's  acts  and  proceedings  in  the 
first  instance,  but  to  wait  until  the  coming  in  of  his  report 
before  hearing  exceptions  by  either  party  to  any  irregu- 
larity or  excess  of  authority  on  his  part.^^ 

§  360.  Evidence  before  the  master.  Every  sort  of  evi- 
dence which  can  be  used  at  a  final  hearing  of  the  cause, 
such  as  oral  testimony  of  witnesses,  depositions  and  writ- 
ten instruments,^^  may  be  introduced  before  the  master. 
The  master  by  virtue  of  his  appointment  as  an  officer  of 
the  court  is  authorized  to  swear  the  witnesses.     If  any 

28.  Refrigerator   Co.   v.   Gillette,       termined    by    the    master    may   be 
28  Ted.  673  (1886).  considered  by  him.    This  is  also  ex- 

But    the    court    may    in    certain  pressly    allowed    by    U.    S.    Equity 

cases  order  him  to  speed  the  cause.  Rule    64    (1913).      And    see,    also, 

Fla.    Equity    Rule    77;    R.    I.    Rule  Florida   Rule   81;    Taylor   v.   Lum- 

35;    U.    S.    Eq.    Rule    60     (1913);  ber  Co.,  59  Fla.  638  (1910) ;  Rhode 

Wyly  V.  Richmond,  etc.,  R.  Co.,  63  island  Rule  72. 

Fed.  487   (1894).  -g^^  j^  jg  error  to  have  one  mas- 

29.  Alabama     Code,     1907,     Sec.       j.       •        i,  4.  i     • 

'  '  ter  in  chancery  report  conclusions 

6159;  Grob  v.  Cushman,  45  Til.  119  „    ,                ,     ^     .                      •. 

'                        „         '  of    law    and    fact    upon    evidence 

(1867);     U.     S.     Equity     Rule     77  ^  ,         ,     „               xi.          tvt       u 

^          '                          ^      •'  taken   before  another.     Murphy  v. 

^   -r,      '.  ■     ■  .  .,    ^  X,  •  Schnell,   248   111.    182    (1911);   Coel 

Parties  may  insist  that  the  evi- 

-,  V     ^  1         •  -x-  T  V.  Glos,  232  111.  142   (1908).     Com- 

dence  be  taken  m  writing.     Love-  '  ^  ' 

joy  V.  Churchill,  29  Vt.  151  (1857).  P^""^    Patterson    v.    The    Northern 

And  if  taken  orally  it  must  be  re-  Trust  Co.,  170  111.  App.  501  (1912). 

duced    to    writing.     Brockman    v.  ^^  Pc^'^e  affidavits  are  not  com- 

Aulger,  12  111.  277    (1850).  petent  evidence  on  hearing  before 

In  Gilmore  v.  Gilmore,  40  Me.  50  a  master.     Crane   v.   Stafford,   217 

(1855),    it   was    held    that    all    the  111.  21  (1905). 

legal  evidence  had  at  the  hearing 

bearing  upon  the  question  to  be  de- 


590 


EQUITY  PRACTICE 


person  duly  summoned  as  a  witness  refuses  to  attend  or 
to  answer  any  question  which  the  master  decides  to  be 
a  proper  one  and  orders  the  witness  to  answer,  it  is  not 
within  the  power  of  the  master  to  issue  a  capias  for  con- 
tempt. The  proper  course  is  for  the  party  aggrieved  by 
such  refusal  to  appear  or  answer  to  make  application  to 
the  court  to  compel  such  appearance  or  answer.^" 

The  general  rules  regulating  the  admissibility  of  evi- 
dence which  govern  courts  of  law  and  courts  of  chancery, 
regulate  also  the  proceedings  before  a  master."^^  It  is 
proper  for  the  master  (unlike  a  magistrate  taking  a  depo- 
sition) to  pass  upon  the  admissibility  of  evidence  offered 
and  objected  to  and  reject  it  if  improper."^-  If  either  party 
then  finds  himself  aggrieved  by  the  admission  or  rejec- 
tion of  evidence  offered  and  objected  to,  he  should  take 
exceptions  to  the  master's  report  on  that  ground.^^    He 


30.  Chapter  XIX,  "Evidence," 
Sec.  346,  ante,  p.  571. 

31.  Master  may  examine  the  par- 
ties. Hollister  v.  Barclay,  11  N.  H. 
501   (1841). 

In  Bailey  v.  Myriek,  52  Me.  132 
(1864),  it  was  held  that  the  master 
may  examine  the  parties  as  to  the 
receipt  of  rents  and  profits,  or  the 
possession  of  the  estate,  although 
one  of  them  may  be  an  adminis- 
trator. 

Credibility  of  the  witnesses  is  a 
question  for  the  master.  Scoville 
V.  Brock,  81  Vt.  405  (1908). 

Whether  a  witness  is  qualified  as 
an  expert  may  be  determined  by 
the  master.  Kelley  v.  Allin,  212 
Mass.  327   (1912). 

After  the  closing  of  testimony, 
the  master  has  discretion  to  re- 
open the  case  for  further  evidence. 
Bon  V.  Graves,  103  N.  E.  1023 
(Mass.  1914);  Eichardson  v. 
Wright,  58  Vt.  367  (1886). 

But  should  not  open  it  for  mere 


cumulative      evidence.      Oliver      v, 
Wilhite,  201  111.  552   (1903). 

Master  may  require  proof  to  be 
taken  by  a  specified  time.  Sweeney 
V.   Kaufmann,   168  111.  233   (1897). 

32.  Ellwood  V.  Walter,  103  111. 
App.  219  (1902). 

In  Nichols  v.  Ela,  124  Mass.  33 
(1878),  and  .Jackson  v.  Jackson,  3 
X.  J.  ,Eq.  96  (1834),  it  was  held 
that  it  is  not  only  the  privilege 
but  the  duty  of  the  master  to  limit 
the  cross-examination  within  prop- 
er bounds  and  exclude  improper 
questions,  and  exceptions  therefor 
will  not  be  sustained  where  the 
matter  excluded  was  not  suffi- 
ciently material  to  be  prejudicial. 
See  also  He  Felts,  205  Fed.  983 
(1913). 

33.  Cary  v.  Herrin,  62  Me.  18 
(1873);  Nichols  v.  Ela,  124  Mass. 
333  (1878);  .Tackson  v.  Jackson,  3 
N.  J.  Eq.  96  (1834);  Willing  v. 
LaBau,  32  Fed.  293   (1885). 


MASTERS  IN  CHANCERY 


591 


cannot  be  permitted  to  suspend  the  examination  in  order 
to  take  the  opinion  of  the  court  as  to  the  admissibility  of 
the  evidence  offered. ^^  When  evidence  is  thus  offered  and 
objected  to  and  the  objection  sustained  by  the  master,  if 
the  party  aggrieved  requests  it  the  master  shoukl  take  the 
evidence  objected  to  and  annex  it  to  his  report  with  a 
minute  of  the  objections  and  his  ruling  thereon  so  that 
exceptions  may  be  taken  thereto.  If  the  court  ^  should 
upon  the  exceptions  decide  that  the  master  was  in  error 
and  that  the  evidence  was  material  and  its  exclusion 
prejudicial,  the  resummoning  of  parties  and  witnesses  to 
take  the  evidence  rejected  would  he  avoided.  If  the 
exclusion  of  the  evidence  in  question,  although  improper, 
was  not  of  sufficient  importance  to  be  prejudicial,  the 
exceptions  will  not  be  sustained.^^ 


34.  In  Eusling  v.  Bray,  37  N.  J. 
Eq.  174  (1883),  the  court  held, 
"To  establish  or  tolerate  the  prac- 
tice of  allowing  parties  to  sus- 
pend the  examination  (before  the 
master)  in  order  to  obtain  the 
opinion  of  the  court  as  to  the  com- 
petency of  witnesses  on  the  rele- 
vancy of  evidence,  would  greatly 
impede  and  embarrass  suitors  and 
often  prove  disastrous  to  poor  liti- 
gants. It  is  urged  that  the  rec- 
ord should  not  be  encumbered  with 
useless  material.  The  answer  is 
that  the  party  insisting  on  the 
production  of  illegal  evidence  does 
so  at  his  peril  as  to  all  the  costs 
that  shall  follow." 

35.  Nichols  v.  Ela,  124  Mass.  333 
(1878);  Eddy  v.  Eddy,  168  Fed. 
590  (1909).  See  also  Alabama 
Eq.  Rule  88. 

In  Dowagiac  Mfg.  Co.  v.  Loch- 
ren,  143  Fed.  211  (1906),  the  cir- 
cuit court  for  the  district  of  Ken- 
tucky had  appointed  a  master  to 
take    testimony   in    Minnesota   for 


,  use  in  a  case  pending  before  them. 
A  witness  objected  to  a  question 
on  the  ground  that  it  was  irrelev- 
aut,  immaterial  and  privileged, 
which  objection  was  overruled  by 
the  master.  The  witness  there- 
upon refused  to  answer  upon  ad- 
vice of  counsel,  and  upon  applica- 
tion to  the  circuit  court  of  Min- 
nesota for  an  order  compelling  him 
to  testify,  that  court  decided  that 
the  witness  need  not  answer,  as 
the  question  was  immaterial.  An 
application  was  then  made  to  the 
Circuit  Court  of  Appeals  for  a 
mandamus  directing  the  judges  of 
the  circuit  court  of  Minnesota  to 
order  the  witness  to  answer.  The 
court  held  that  it  is  not  the  duty 
of  an  auxiliary  court  or  judge, 
within  whose  jurisdiction  testi- 
mony is  being  taken  in  a  suit 
pending  in  the  court  of  another 
district,  to  consider  or  determine 
the  competency,  materiality,  or 
relevancy  of  the  evidence,  which 
one  of  the  parties  seeks  to   elicit. 


592 


EQUITY  PRACTICE 


§  361.  Master's  report.  A  master's  report  may  be  either 
general,  embracing  the  whole  matter  referred  to  the 
master,  or  special,  upon  some  preliminary  or  separate 
point  which  cannot  be  delayed  until  the  general  report, 
the  special  report  being  prepared,  disputed,  and  confirmed 
in  the  same  manner  as  a  general  one.'"'  It  is  the  duty  of  the 
master  to  make  his  report  conform  to  the  directions  of 
the  order  of  reference  ■'"  and  to  report  his  conclusions  of 
fact  and  not  the  mere  evidence  of  facts  ^^  nor  arguments 
thereon.^"     Nor  is  it  his  duty  to  report  the  evidence  in 


It  is  the  duty  of  such  a  court  or 
judge  to  compel  the  production  of 
the  evidence,  although  the  judge 
deems  it  incompetent  or  immate- 
rial, unless  the  witness  or  the  evi- 
dence cannot  possibly  be  compe- 
tent, material  or  relevant,  and  that 
it  would  be  an  abuse  of  the  process 
of  the  court  to  compel  its  produc- 
tion. The  court  also  held  that  this 
rule  of  practice  applied  whether 
the  taking  of  testimony  was  be- 
fore a  commissioner  or  examiner, 
or  before  a  master  empowered  to 
determine  the  admissibility  of  evi- 
dence. 

36.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.   1294. 

37.  Henderson  v.  Huey,  45  Ala. 
275  (1871);  Blauvelt  v.  Ackerman, 
20  N.  J.  Eq.  141  (1869);  Maury  v. 
Lewis,  10  Yerg.  (Tenn.)  115 
(1836);  Bland  v.  Stewart,  35  W. 
Va.  518  (1891);  Terry  v.  Bobbins, 
122  Fed.  725  (1903). 

If  decree  of  reference  is  not  fol- 
lowed, the  chancellor  may  set  the 
report  aside,  even  ex  mero  motu, 
and  order  another  reference  if- 
deemed  advisable  or  ascertain  the 
facts  for  himself.  Richardson  v. 
Horton,  139  Ala.  350   (1903). 

It  is  error  for  the  court  to  re- 
fuse to  direct  the  master  to  report 


in  accordance  with  the  order  of  ref- 
erence. Fed.  Life  Ins.  Co.  v. 
Looney,  180  111.  App.  488  (1913). 

A  reference  "for  the  hearing  of 
testimony  and  report"  requires  the 
master  to  hear  testimony  and  re- 
port his  conclusions  as  to  law  and 
facts.  Weil  v.  Mulvaney,  104  N. 
E.  273   (111.  1914). 

38.  Simmons  v.  Jacobs,  52  Me. 
147  (1862);  Parker  v.  Simpson,  180 
Mass.  334  (1900);  Roberts  v.  Bar- 
ker, 63  N.  H.  332  (1885);  Crim  v. 
Post,  41  W.  Va.  397  (1895). 

But  the  master  should  disclose, 
w^here  the  matter  would  otherwise 
be  doubtful,  the  basis  of  such  con- 
clusions. Frazier  v.  Swain,  36  N. 
J.  Eq.  156  (1882). 

In  Florida  and  the  Federal 
courts  it  is  provided  by  chancery 
rule  that  in  the  report  of  the  mas- 
ter no  state  of  facts,  account, 
charge,  affidavit,,  deposition,  exam- 
ination, or  answer  brought  in  or 
used  before  him  shall  be  stated 
or  recited.  They  shall  be  identi- 
fied and  referred  to.  See  Florida 
Rule  84;  U.  S.  Eq.  Rule  61  (1913). 

39.  Manowsky  v.  Stephan,  233 
111.  409  (1908);  Topliflf  v.  Jackson, 
12  Gray  (Mass.)  565,  569  (1859); 
Jackson  v.  Jackson,  3  N.  J.  Eq.  96 


MASTERS  IN  CHANCERY 


593 


addition  to  his  findings  of  fact  unless  the  order  of  reference 
so  requires.^ '^  It  is  irregular  to  do  so  at  the  request  of 
either  party  without  such  order  of  court  ^^  except  where 
objections  are  taken  at  the  hearing  to  the  admission  or 
exclusion  of  evidence  by  the  master,  when  the  evidence 
in  question  should  be  annexed  to  the  report.''^  It  is, 
however,  within  the  discretion  of  the  court  to  order  the 
evidence  to  be  reported,  and  the  appellate  court  will  not 
in  such  case  interfere.^  ^ 


(1834);  Evans  v.  Evans,  2  Coklw. 
(Tenn.)   143   (1865). 

Such  statements  may  not,  how- 
ever, afford  any  ground  of  excep- 
tion. Topliff  v.  Jackson,  12  Gray 
(Mass.)  565   (1859). 

The  master  should  report  his 
conclusions  of  law  when  the  order 
directs  him  to  do  so.  Nims  v. 
Nims,  20  Fla.  204  (1883);  Parker 
v.  Nickerson,  137  Mass.  487  (1884). 

It  is  not  the  province  of  the 
master  to  determine  what  decree 
should  be  made  on  the  facts  as 
found.  Clark  v.  Seagraves,  186 
Mass.   430    (1904). 

40.  Alabama.  Mahone  v.  Wil- 
liams, 39  Ala.  202  (1863). 

Maine.  Simmons  v.  Jacobs,  52 
Me.   147    (1862). 

Massachusetts.  Parker  v.  Nick- 
erson, 137  Mass.  487   (1884). 

Virginia.  Maddock  v.  Skinker, 
93  Va.  479   (1896). 

West  Virginia.  Kester  v.  Lyon, 
40  "W.  Va.  161  (1895)  (unless  ex- 
ception taken). 

United  States.  Weiss  v.  Haight 
&  Freese  Co.,  148  U.  S.  399  (1900). 

Contra: 

Florida.  Mote  v.  Morton,  52  Fla. 
548  (1906);  Adams  v.  Frye,  29  Fla. 
318   (1892). 

Illinois.  Hays  v.  Hammond,  162 
Whltehouse  E.  P.  Vol.  I — 38 


HI.  133  (1896)  (by  statute  whole 
evidence  must  be  reported). 

In  Vermont  the  decisions  do  not 
seem  to  be  uniform,  Mott  v.  Har- 
rington, 15  Vt.  185  (1843),  sup- 
porting the  rule  as  stated  in  the 
text,  while  Herrick  v.  Belknap,  27 
Vt.  673  (1854),  holds  that  the  mas- 
ter should  report  the  evidence. 

In  New  Jersey,  by  statute  (Eev. 
Stat.  1895,  p.  397,  Sec.  129),  it  is 
provided  that  if  a  report  of  the 
evidence  becomes  necessary  in  the 
progress  of  a  hearing  "for  use  on 
appeal  from  decree  of  the  chancel- 
lor therein  or  otherwise,  then  such 
master  shall  settle  and  sign  such 
report." 

In  Ehode  Island,  the  practice  is 
not  to  report  testimony  given  oral- 
ly unless  directed  to  do  so  by  de- 
cree or  requested  by  the  party. 
Clapp  V.  Sherman,  16  E.  I.  370 
(1888). 

41.  Nichols  V.  Ela,  124  Mass. 
333,  336   (1877). 

42.  Elwood  V.  Walter,  103  111. 
App.  219  (1902);  Gary  v.  Herrin, 
62  Me.  16  (1873);  Kansas  City 
Loan  &  Trust  Co.  v.  Electric  R. 
Light  &  Power  Co.,  108  Fed.  702 
(1901).  See  this  chapter.  Sec.  360, 
ante,  p.  591. 

43.  Duffy  V.  Hogan,  203  Mass. 
397    (1909);    Silva   v.   Turner,   166 


594 


EQUITY  PRACTICE 


It  is  also  lield  to  be  the  duty  of  the  master  at  the  request 
of  either  party  to  report  so  much  of  the  evidence  as  may 
be  necessary  to  bring  before  the  court  any  questions  of 
law  raised  at  the  hearing,  or  which  in  his  discretion  he 
thinks  ought  to  be  referred  to  the  court,^^  or  to  support 


Mass.  407  (1896);  Freeland  v. 
Wright,  154  Mass.  492  (1891); 
Lovejoy  v.  Churchill,  29  Vt.  151 
(1857). 

It  may  be  thus  required  in  the 
first  instance  in  the  order  of  refer- 
ence, or  it  is  open  to  either  party 
during  the  hearing  before  the  mas- 
ter to  move  the  court  to  require 
him  to  report  the  whole  testimony 
or  any  part  of  it,  if  in  the  prog- 
ress of  the  hearing  either  party 
considers  such  course  necessary  or 
desirable.  Parker  v.  Nickersou, 
137  Mass.  487,  493  (1884);  Mad- 
dock  V.  Skinker,  93  Va.  479  (1896). 

Under  a  rule  directing  the  mas- 
ter to  hear  parties  and  report  find- 
ings of  fact  and  law,  the  master 
need  not  report  the  evidence  in  ab- 
sence of  a  request  during  hearing. 
Moore  v.  Dick,  187  Mass.  207 
(19.05). 

But  after  a  case  has  been  heard 
before  a  master  and  his  draft  of  a 
report  submitted  to  the  parties, 
the  court  will  not  ordinarily  re- 
quire him  to  file  a  report  of  the 
evidence.  Parker  v.  Nickerson, 
supra;  Cook  v.  Schaffreen,  102  N. 
E.  715  (Mass.  1913).  Nor  allow 
the  order  of  reference  to  be  amend- 
ed for  that  purpose.  Nichols  v. 
Ela,  124  Mass.  33  (1877). 

It  has,  however,  been  allowed 
even  after  report  filed,  if  parties 
were  not  notified  when  report 
would  be  filed.  Williams'  Admr. 
V.  Clark's  Kepresentative,  93  Va. 
690   (1896). 


A  master's  report  of  evidence 
without  the  deposition  of  a  wit- 
ness is  suflScient  in  the  absence  of 
objection.  Dean  v.  Ford,  180  111. 
309   (1899). 

There  is  no  objection  to  a  com- 
missioner filing  with  his  report  an 
analysis  of  the  evidence  submitted 
to  him.  Mountain  Lake  Land  Co. 
V.  Blair,  109  Va.  147  (1909).  But 
not  an  analysis  of  evidence  pre- 
pared by  the  agent  of  the  success- 
ful party.     Ibid. 

Where  the  master  is  not  required 
to  report  certain  evidence  to  the 
court  and  does  not,  his  conclusions 
upon  the  evidence  must  be  deemed 
correct.  Eowell  v.  Jewett,  73  Me. 
365  (1882);  Taber  v.  Breck,  192 
Mass.  355  (1906);  Crosier  v.  Kel- 
logg, 210  Mass.  181  (1911);  Wil- 
liams v.  Wager,  64  Vt.  32  (1892); 
Maddock  v.  Skinker,  93  Va.  479 
(1896). 

Where  master  is  required  to  re- 
port evidence,  it  will  be  presumed 
that  he  returned  the  entire  evi- 
dence relative  to  the  specific  find- 
ing challenged.  Guarantee,  etc.,  Co. 
V.   Edwards,   164  Fed.   809   (1908). 

A  request  that  the  master  report 
on  portions  of  the  evidence  is  prop- 
erly refused.  Barnett  v.  Rosen- 
burg,  209  Mass.  421   (1911). 

In  Tennessee  it  is  the  master's 
duty  to  refer  to  evidence  on  which 
he  bases  his  cited  facts.  Still  v. 
Goode,  10  Heisk.  158   (1872). 

44.  Parker  v.  Nickerson,  137 
Mass.    487,    493    (1884).     See    also 


MASTERS  IN  CHANCERY 


595 


any  findings  of  fact  to  wliicli  exceptions  may  have  been 
taken.''^ 

The  report  of  a  master,  though  not  conchisive,  has  sub- 
stantially the  weight  of  a  verdict,  and  his  conclusions  of 
fact  are  not  to  be  set  aside  or  modified  without  clear  proof 
of  error.^^ 


Massie  Wireless  Telegraph  Co.  v. 
Enterprise  Transportation  Co.,  175 
Fed.  6  (1910). 

In  Ginn  v.  Almy,  212  Mass.  486 
(1912),  it  was  held  that  a  master 
was  only  required  to  report 
enough  of  the  evidence  to  clearly 
present  the  questions  of  law. 

45.  Mahone  v.  Williams,  39 
Ala.  202  (1863);  Union  Sugar  Ee- 
finery  v.  Mathiessen,  3  Cliff.  146, 
149  (1868). 

In  West  Virginia  all  the  evidence 
is  to  be  returned  where  exception 
is  taken.  Central  City  Brick  Co. 
V.  Norfolk,  etc.,  R.  Co.,  44  W.  Va. 
286   (1893). 

Where  evidence  excepted  to  re- 
fers to  immaterial  issues,  the  fail- 
ure to  require  master  to  report  the 
evidence  is  not  error.  American 
Circular  Loom  Co.  v.  Wilson,  198 
Mass.   182    (1908). 

46.  Chancellor  v.  Teel,  141  Ala. 
634  (1904);  Paul  v.  Frye,  80  Me. 
26  (1887);  Newall  v.  West,  149 
Mass.  520  (1889) ;  Howard  v.  Scott, 
50  Vt.  48  (1877);  Davis  v. 
Schwartz,  155  U.  S.  631,  39  L.  ed. 
289  (1894);  In  re  Taff  &  Conyers, 
182  Fed.  899  (1910). 

This  doctrine  only  applies  where 
the  evidence  is  conflicting.  Bagley 
&  Sewall  Co.  v.  Traders  Paper 
Board  Co.,  86  Atl.  1029  (N.  J. 
1913);  McConomy  v.  Reid,  152  Pa. 
St.  42   (1892). 

And  in  many  states  it  is  ex- 
pressly   repudiated,   the    report    of 


the  master  being  advisory  only. 
Kelly  V.  Fahrney,  242  111.  240 
(1909);  Holmes  v.  Holmes,  18  N. 
J.  Eq.  141  (1886);  Stewart  v. 
Stewart,  40  W.  Va.  65  (1894);  Holt 
V.  Taylor,  43  W.  Va.  153  (1897); 
but  see  Holland  v.  Cronkright,  23 
N.  J.  Eq.  407   (1873). 

The  following  cases  hold  that  a 
report  is  not  conclusive  but  sub- 
ject to  review  by  the  court:  En- 
nesser  v.  Hudek,  169  111.  494 
(1897);  Near  v.  Low,  56  Mich.  632 
(1885);  Philip's  App.,  68  Pa.  St. 
130  (1871);  State  v.  King,  64  W. 
Va.  546   (1908). 

It  is  sometimes  said  that  a  re- 
port is  conclusive  unless  mistake 
or  corruption  is  shown.  Hatha- 
way V.  Hagen,  64  Vt.  135,  Atl. 
(1891);  Crislip  v.  Cain,  19  W.  Va. 
438   (1882). 

Other  cases  hold  that  in  order  to 
disturb  conclusions  of  master, 
error  must  affirmatively  appear. 
Bruggestradt  v.  Ludwig,  184  111.  24 
(1900);  Pierce  v.  Faunce,  53  Me. 
351  (1885).  And  that  as  to  the 
findings  of  fact  there  is  a  presump- 
tion of  correctness.  Williams  v. 
Lindblom,  163  111.  346  (1896);  Fel- 
ton  v.  Felton,  47  W.  Va.  27  (1899); 
Cimiotti  Unhairing  Co.  v.  Amer. 
Fur  Refining  Co.,  158  Fed.  171 
(1908). 

Findings  may  be  conclusive  by 
agreement.  Pray  v.  Brigham,  174 
Mass.  129  (1899).  In  Kimberly  v. 
Arms,  129  U.  S.  512,  32  L.  ed.  764 


596 


EQUITY  PRACTICE 


§  362.  Form  of  report.  Tlie  master's  report  should  be 
outitlod  with  the  name  of  the  cause  in  the  usual  way  and 
headed,  "Master's  report"  or  "Master's  special  report," 
as  the  case  may  be.  It  should  then  proceed  to  state  that 
the  master  in  i)ursuance  of  the  order  of  reference  and 
upon  application  of  one  of  the  parties  assigned  such  a  time 
and  place  for  a  hearing,  and  at  the  request  of  the  party 
obtaining  the  reference  issued  a  summons  to  the  second 
party  to  appear  at  such  time  and  place  and  prove  his  case, 
in  accordance  with  the  requirements  of  the  statute  or 


(1889),  it  was  held  that  where  a 
reference  is  involuntary,  the  find- 
ings of  a  master  are  advisory,  but 
where  it  is  by  consent,  the  findings 
are  presumptively  correct.  This 
case  was  followed  and  approved  in 
Blassengame  v.  Boj'd,  178  Fed.  1 
(1910).  But  a  general  order  that 
all  equity  cases  be  referred  to  a 
master  does  not  make  it  a  refer- 
ence by  consent  within  the  mean- 
ing of  this  rule.  Loan,  etc.,  Co.  y. 
Edwards,  164  Fed.  809  (1908). 

In  the  absence  of  exceptions  the 
findings  of  fact  are  taken  as  cor- 
rect. Bellenger  v.  Lehman,  103 
Ala.  385  (1893);  Matthews  v. 
Whitehorn,  220  111.  36  (1906) ;  Haas 
Elect.  &  Mfg.  Co.  V.  Springfield 
Amus.  Park  Co.,  236  111.  462 
(1908);  Lipsky  v.  Heller,  199  Mass. 
310  (1908);  Thorne  v.  Hilliker,  12 
Mich.  215  (1864);  Greenleaf  v. 
Leach,  20  Vt.  281  (1848);  Ship- 
man  v.  Fletcher,  91  Va.  473  (1895); 
Bank  v.  Nickell,  57  W.  Ya.  57 
(1905);  Sanders  v.  Eiverside,  118 
Fed.  720   (1902). 

In  Carey  v.  Herrin,  62  Me.  16 
(1873),  after  recognizing  this  lat- 
ter rule,  it  was  held  that  the  find- 
ings of  a  master  are  not  conclusive 
upon  points  expressly  raised  at  the 
hearing  and  overruled  by  him,  and 


that  in  such  case  the  master  should 
report  the  evidence  bearing  upon 
the  point  in  order  that  exceptions 
may  be   taken. 

The  parts  of  a  report  not  ex- 
cepted to  will  be  taken  as  prima 
facie  correct,  not  only  as  regards 
the  principles  but  as  relates  to  the 
evidence  upon  which  they  are 
based. 

The  master's  report  is  evidence 
on  appeal  and  may  be  used  in  the 
same  way  as  an  auditor's  report. 
Clapp  V.  Sturdivant,  10  Me.  68 
(1833). 

Where  the  master  reports  find- 
ings of  fact,  the  court  may  make 
additional  findings  of  fact  from  the 
report  without  further  evidence. 
American  Circular  Loom  Co.  v. 
Wilson,  198  Mass.  182  (1908); 
Davenport  v.  Crowell,  79  Vt.  419 
(1907). 

It  has  been  said  that  the  findings 
of  a  master  will  not  be  disturbed 
where  the  facts  referred  to  in  his 
report  are  pertinent  and  are,  when 
considered  together,  sufficient  to 
support  the  findings,  but  where  the 
facts  so  referred  to  are  not  perti- 
nent, the  findings  cannot  stand. 
Lawrie  v.  Scully,  82  Vt.  505 
(1905). 


MASTERS  IN  CHANCERY  597 

chancery  rule,  or  if  the  parties  attend  by  agreement  with- 
out such  summons,  should  so  state;  and  further  that  a 
hearing  was  had  and  upon  examination  of  the  evidence, 
the  master  finds,  "first,"  etc.,  stating  the  facts  of  the 
case  in  distinct  paragraphs  numbered  seriatim  just  as  in 
the  case  of  a  bill  or  answer.*^ 

If  the  order  requires  the  evidence  to  be  reported,  this 
should  be  stated  separately,  certified  by  the  master  and 
annexed  to  the  report  but  not  embodied  therein.^^  If 
it  is  necessary  to  report  the  evidence  only  on  par- 
ticular points  where  its  admission  or  rejection  was 
objected  to  or  where  it  bears  upon  a  question  of  law,  the 
parts  thus  reported  should  be  annexed  separately  in  like 
manner  and  referred  to  in  the  paragraph  which  contains 
the  conclusions  based  on  the  evidence  in  question,  stating 
the  fact  of  its  being  admitted  and  considered,  or  rejected 
and  disregarded,  together  with  the  objection  of  the 
aggrieved  party,  or  else  pointing  out  the  questions  of  law 
presented  by  it  as  the  case  may  be.  In  stating  an  account 
where  more  than  a  simple  computation  of  the  amount  due 
is  necessary,  he  should  show  in  what  waj  he  arrived  at  his 
conclusion,  so  as  to  enable  the  court  to  ascertain  from  the 
report  itself  whether  his  method  was  right  or  not.^^  He 
should  state  the  account  at  length  and  all  the  facts  found 
so  that  they  will  be  intelligible  without  reference  to  the 
testimony.^*^    He  should  state  what  items  are  allowed  and 

47.  The  statements  in  the  report  See  form  for  master's  report,  in 

regarding     the     assignment     of     a  the  third  volume  post. 

time  and  place  for  hearing  and  of  48.  Matter   of   Hemiup,   3   Paige 

the   notice   to   the   parties   will   of  (N.  Y.)   305   (1832);  Mott  v.  Har- 

eourse  vary  according  to  the  rules  rington,   15  Vt.   185    (1843). 

of  practice   of  the   different  juris-  49.  Frazier  v.  Swain,  36  X.  ,1.  Eq. 

dictions.     See    also    Holt    v.    Holt,  156   (1882);   Moore  v.  Huntington, 

37  W.  Va.  305  (1892).  17  Wall.  417  (1873). 

A  report  may  be  written  by  an-  50.  Nims   v.    Nims,   20    Fla.    204 

other    and    signed    bj^    the    master.  (1883);  Herrick  v.  Belknap,  27  Vt. 

Longmire    v.    Fain,    89    Tenn.    393  673   (1854);   Dewing  v.  Hutton,  40 

(1890).  W.  Va.  521  (1895).     See  also  Ala- 


598  EQUITY  PRACTICE 

what  disallowed,^ ^  and  so  present  them  that  they  may  be 
pointed  out  by  exceptions  to  the  report.^^ 

The  report  should  close  with  the  signature  of  the  master 
in  that  capacity. 

§  363.  Settling  master's  report.  Under  the  former  Eng- 
lish practice  and  according  to  the  practice  of  most  juris- 
dictions in  this  country,  the  master  after  the  close  of  the 
proceedings  before  him  should  make  a  draft  of  his  report 
and  notify  counsel  on  each  side  of  that  fact,  and  appoint 
a  time  and  place  for  them  to  appear  before  him,  hear  the 
report,  point  out  any  errors  that  may  appear  and  raise 
such  objections  as  they  may  see  J&t.  These  are  considered 
by  the  master,  the  errors  if  any  corrected  and  the  objec- 
tions sustained  or  overruled  in  his  discretion.^^  This  is 
called  "settling  the  master's  report. "  Its  object  is  to  pre- 
vent sending  back  the  report  to  the  master  in  order  to 
correct  errors  which  raaj  be  readily  avoided  at  this  stage. 
After  the  report  is  completed  and  settled,  it  should  be 
filed  by  the  master  with  the  clerk  of  courts  and  notice  of 
that  fact  given  to  all  parties  in  interest.^^  If  the  report  is 

bama  Eule   89;   O'Xeill  v.   Perry-  ruled.     Manowsky  v.  Stephan,  233 

man,  102  Ala.  522  (1893).  111.  409   (1908). 

51.  O'Neill  V.  Ferryman,  102  Where  objections  are  not  filed 
Ala.  522  (1893);  Snell  v.  De  Land,  within  proper  time  they  should  be 
138  m.  55,  61  (1891);  Ransom  v.  dismissed,  not  overruled.  Quimby 
Davis,  18  How.  295  (1855).  v.  Tapley,  202  Mass.  601  (1909). 

52.  And  see  Green  v.  Lanier,  5  54.  Cepero  v.  Hartridge,  51  Fla. 
Heisk.   (Tenn.)  662,  670   (1871).  409   (1906);  State  v.  Hyde,  4  Bax- 

53.  Brockman   v.   Aulger,   12  HI.  ter  (Tenn.)  464  (1874). 

277  '(1850);  Massachusetts  Rule  31  In  Massachusetts  and  states  with 

(objections   filed   within   five   days  similar    chancery    rules    there    are 

after    notice) ;    Hillier    v.    Farrell,  several  successive  steps  in  the  set- 

185  Mass.  434  (1904);  Rhode  Island  tling  of  a  master's  report.     On  the 

Rule  40;   Holt  v.  Holt,  37  W.  Va.  hearing    of    the    preliminary    draft 

305     (1892).     But    see    U.    S.    Eq.  report,     the     parties     can     suggest 

Rule  66   (1913).  changes  or  additions  to  the  report, 

In  passing  on  an  objection  made  make  requests  for  rulings  and  state 

before  a  master  to  his  original  re-  any  objections  which  they  propose 

port    of    his    conclusions    he    need  to  make  to  the  report  as  it  is  to 

only   make   a   brief   written   state-  be    filed.      After    this    hearing   the 

ment  that  the  objections  are  over-  master  finally  settles  the  draft  of 


MASTERS  IN  CHANCERY 


599 


delaj'ed  unnecessarily,  either  party  may  moye  the  court 
for  a  rule  to  haye  the  master  show  cause  why  his  report 
should  not  be  drawn  and  filed.^^ 

§  364.  Confirmation  of  report.  After  the  master's 
report  has  been  filed,  the  next  question  is  whether  the 
report  is  of  such  a  nature  as  requires  confirmation  by  the 
court  or  not.  Upon  this  point  it  may  be  stated  as  a  general 
rule  that  where  the  court  makes  an  order  or  decree  and  the 
master  is  only  required  by  the  order  of  reference  to  make 
some  inquiry  for  carrying  into  effect  this  order,  the  report 
will  not  require  confirmation.^'' 

the  report  as  he  proposes  to  file  it 
iu  court,  which  will,  of  course,  rep- 
resent any  changes  that  may  have 
taken  place  in  the  master's  views 
because  of  the  objections,  sugges- 
tions and  requests  made  to  him 
on  the  hearing  of  his  draft  report. 
Xotice  of  this  final  draft  report  is 
given  and  a  certain  time  is  allowed 
for  bringing  in  written  objections 
thereto,  which  objections,  if  any, 
are  appended  to  the  report.  These 
written  objections  are  the  neces- 
sary foundation  for  exceptions  to 
the  final  report.  In  Massachusetts 
the  master's  final  report  must  be 
filed  in  the  office  of  the  clerk  of 
courts  within  ninety  days  after  the 
hearing  before  him  has  been 
closed,  or  within  such  time  as  the 
court  may  allow.  (Rev.  Laws, 
Chap.   165,  Sec.  61.) 

In  New  Jersey  the  English  rule 
does  not  prevail,  and  the  master 
may  file  report  without  notice,  ex- 
ceptions being  heard  before  the 
chancellor.  Van  Ness  v.  Van  Ness, 
32  N.  J.  Eq.  729.  And  see  Florida 
Eule  84,  and  U.  S.  Eq.  Rule  66 
(1913). 

55.  In  Virginia  the  master  must 
file  a  report  ten  days  before  the 
hearing. 


In  West  Virginia  master  must 
hold  the  report  ten  days  before  fil- 
ing it,  in  order  to  give  the  parties 
time  in  which  to  file  exceptions  to 
it.  Smith  V.  Brown,  44  W.  Va. 
342  (1897).  But  parties  may  by 
agreement  extend  the  time  for  fil- 
ing a  report.  Sharpless  v.  Warren, 
58  S.  W.  407  (Tenn.  Ch.  App. 
1899). 

In  Tennessee,  a  complete  report 
shall  be  filed  by  the  clerk  and  mas- 
ter within  the  time  prescribed  by 
the  order  or  decree  or  a  satisfac- 
tory excuse  given  in  writing  to  the 
chancellor  by  the  same  time  in  lieu 
of  such  report.  Code,  Sec.  6288. 
Where  there  is  no  direction  to  the 
contrary  it  is  presumed  the  master 
is  to  report  at  the  term  follow- 
ing the  reference.  State  v.  Hyde, 
4  Baxter  (Tenn.)  464  (1874). 

A  delay  of  six  years  after  a  ref- 
erence before  filing  a  report  was 
held  improper  in  Bibber  &  White 
Co.  v.  White  River  Valley  Electric 
E.  Co.  175  Fed.  470   (1909). 

A  master's  report  may  be  filed 
in  vacation.  Sweeney  v.  Kauf- 
mann,  168  111.  233   (1897). 

56.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1304.  Thus  all  reports  confined 
to   such   facts   as   that   the   master 


600 


EQUITY  PRACTICE 


But  where  the  report  is  required  in  order  to  enable  the 
court  to  make  some  order  or  a  final  decree,  the  report  must 
be  confirmed  before  it  is  adopted  as  the  foundation  of  such 
future  order  or  decree.-"''  If  confirmation  is  required,  the 
proper  course  according  to  the  practice  in  some  jurisdic- 
tions is  for  the  moving  party  to  move  the  court  for  its  con- 
firmation and  give  notice  to  the  adverse  party  of  the 
motion  and  the  time  and  place  for  hearing  thereon.^^  In 
others  the  report  stands  confirmed  unless  exceptions  are 
filed  within  a  certain  time.^*^  And  in  still  others  the 
ancient  chanceiy  practice  of  a  rule  nisi  still  prevails.'''^ 

§  365.  Amendment  and  correction  of  report.  After  the 
report  has  been  filed  in  court  by  the  master,  he  may  still 
be  allowed  by  leave  of  court  to  amend  it  by  correcting  an 


has  appointed  trustees,  approved  a 
conveyance  and  the  like  do  not  re- 
quire confirmation.  Likewise  a  re- 
port upon  exceptions  for  scandal  or 
insufficiency. 

57.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1305;  Patterson  v.  Northern 
Trust  Co.,  170  111.  App.  501  (1912); 
C'hamplin  v.  Memphis,  etc.,  E.  E. 
Co.,  9  Heisk.  (Tenn.)  683  (1872). 

In  the  absence  of  formal  con- 
firmation the  basing  of  a  final  de- 
cree upon  the  report  will  act  as  a 
confirmation.  Loan  Co.  v.  Wilson, 
198  Mass.  182   (1908). 

58.  This  is  the  practice  in 
Maine.  See  also  Sec.  370,  po.s/, 
p.  607. 

59.  In  Alabama,  the  report  lies 
over  at  least  one  day  for  excep- 
tions before  being  confirmed.  Eq. 
Eule  94. 

In  Florida,  Eule  84  provides  that 
if  no  exceptions  are  filed  within 
twenty  days  from  the  time  of  fil- 
ing the  report,  the  report  shall 
stand  confirmed  on  the  next  rule 
day  after  the  month  has  expired. 


Ehode  Island  Equity  Eule  40 
provides  that  the  report  will  stand 
confirmed  if  exceptions  are  not 
filed  within  thirty  days  of  filing 
the  report. 

Tennessee  Eule  4,  Sec.  14,  pro- 
vides that  after  the  time  allowed 
for  filing  exceptions  shall  have  ex- 
pired and  none  have  been  filed,  the 
report  may  be  confirmed  unless  for 
good  cause  a  longer  time  is  al- 
lowed. 

United  States  Equity  Eule  66 
(1913)  provides  that  if  no  excep- 
tions are  filed  within  twenty  days 
from  the  time  of  filing  the  report, 
the  report  shall  stand  confirmed. 

60.  Suj'dam  v.  Dequindre,  Wal- 
ker (Mich.)  23  (1842);  Weber  v. 
Wertling,  18  N.  J.  Eq.  39  (1866). 

Under  this  practice  a  rule  was 
entered  of  course  that  the  report 
stand  confirmed  unless  within  eight 
days  the  adverse  party  should  show 
cause  to  the  contrary.  2  Daniell 
Ch.  Pr.   (6th  Am.  ed.),  947. 


MASTERS  IN  CHANCERY 


601 


error  of  expression  so  as  to  present  correctly  the  result  at 
which  he  has  arrived,  and  in  such  case  no  notice  to  the 
parties  will  be  required.''^  The  court  itself  may  also  cor- 
rect a  mere  error  in  calculation  in  a  master's  report 
although  no  exceptions  have  been  filed  and  without  send- 
ing it  back  to  the  master.''-  A  report  should  not  be  set 
aside  or  recommitted  for  errors  in  computation  merely. 
Such  errors  not  affecting  the  result  materially  may  be 
corrected  at  any  time  before  or  after  confirmation  of  the 
report  ."^^ 

§  366.  Irregularities,  how  remedied.  Irregularities  in 
the  master's  proceedings  or  neglect  to  report  on  the  mat- 
ters referred  are  properly  brought  to  the  attention  of  the 
court  and  remedied  by  motion  to  set  aside  the  report  or  to 
refer  it  back  to  be  perfected.  It  is  not  the  correct  prac- 
tice to  except  to  the  report  in  such  cases.''''     Objections 


61.  Howe  V.  Russell,  36  Me.  115 
(1853);  Heywood  v.  Miner,  102 
Mass.  466  (1869);  Laing  v.  Byrne, 
34  N.  J.  Eq.  52  (1881).  But  it 
would  seem  that  this  would  not  be 
permitted  without  such  notice  in 
any  but  mere  clerical  matters  or 
errors  of  computation  not  mate- 
rially affecting  the  result.  Where 
a  report  has  been  followed  by  an 
order  or  decree  for  the  payment  of 
the  balance  as  found  due  by  the 
master,  it  cannot  be  amended 
while  the  order  or  decree  founded 
thereon  remains  in  full  force. 
Utica  Ins.  Co.  v.  Lynch,  2  Barb. 
Ch.  (N.  Y.)  573  (1848). 

62.  Davis  v.  Roberts,  Sm.  &  M. 
Ch.  (Miss.)  543  (1843);  Gaines  v. 
Brockerhoff,  136  Pa.  St.  175 
(1890).  Contra,  Poling  v.  Hoff- 
man, 48  W.  Va.  639  (1900).  So 
where  the  omission  to  reckon  in- 
terest on  certain  items  appeared  to 
have  been  due  to  the  master 's  over- 
sight in   a  suit   to  redeem   from   a 


mortgage,  the  court  made  the  nec- 
essary correction.  Grossman  v. 
Card,  143  Mass.  152  (1887),  See 
also  Huston  v.  Cassidy,  14  N.  J. 
Eq.  320  (1862);  Morris  v.  Taylor, 
23  N.  J.  Eq.  131,  132  (1872);  Saf- 
ford  V.  Safford,  7  Paige  (N.  Y.)  259 
(1838). 

The  court  has  no  power  to  alter 
the  report  of  a  master  beyond  mere 
errors  of  computation  or  clerical 
mistakes.  Such  as  it  is,  it  is  the 
master's  work  for  which  he  alone 
is  responsible:  Miller  v.  People 's 
Lumber  Co.,  98  111.  App.  468 
(1900), 

63.  Utica  Ins.  Co.  v.  Lynch,  2 
Barb.  Ch.  (N.  Y.)  573  (1848); 
Howe  V.  Russell,  36  Me.  115  (1853). 
See  also  Whittemore  v.  Fisher, 
132  111.  243   (1890). 

64.  Illinois.  United  Shirt,  etc., 
Co.  v.  Pitzile,  66  111.  App.  475 
(1896). 

Massachusetts.  Lamson  v.  Drake, 
105  Mass.  564  (1875), 


602 


EQUITY  PRACTICE 


cannot  be  made  to  the  regularity  of  the  report  after  the 
party  making  the  objections  has  filed  exceptions  with 
knowledge  of  the  irregularities.**^ 

§  367.  Exceptions.  The  province  of  exceptions  to  the 
report  of  a  master  is  to  call  in  question  the  correctness  of 
the  conclusions  to  which  he  may  have  come,  upon  the  sub- 
ject referred  to  him,^**  Errors  apparent  on  the  face  of 
the  report  may  in  some  jurisdictions  be  taken  advantage 
of  without  exceptions.'''"'"    It  is  not  possible  to  raise  any 


Michigan.  Suydam  v.  Dequintre, 
Walker   (Mich.)   23   (1842). 

New  Jersey.  Douglas  v.  Merce- 
les,  24  X.  J.  Eq.  25,  36  (1873). 

Rhode  Island.  Hall  v.  Wescott, 
17  E.  I.  504  (1891). 

Contra,  Jones  v.  Byrne,  94  Va. 
751    (1897). 

65.  Lamson  v.  Drake,  105  Mass. 
564  (1870);  Johnson  v.  Swart,  11 
Paige  (N.  Y.)  385  (1844). 

66.  Douglas  v.  Merceles,  24  N.  J. 
Eq.  25,  26  (1873);  Weber  v.  Weit- 
ling,  18  N.  J.  Eq.  39  (1866);  Bank 
of  Union  v.  Nichol,  57  W.  Va.  57 
(1905).  Exceptions  will  not  lie  to 
the  report  of  a  master  for  scandal 
or  impertinence,  but  the  proper 
course  is  by  motion  to  expunge. 
Tyler  v.  Simmons,  6  Paige  (N.  Y.) 
127  (1836).  So  in  the  case  of 
irregularities,  exceptions  will  not 
lie,  but  the  proper  course  is  to 
move  to  set  aside  or  refer  cases. 
But  the  report  of  a  master  upon  a 
subject  not  referred  to  him  by 
the  court  may  be  excepted  to  and 
the  report  referred  back  to  have 
the  unauthorized  portion  stricken 
out.  Taylor  v.  Robertson,  27  Fed. 
537   (1886). 

It  is  no  objection,  however,  to 
the  report  of  a  master  that  he 
acted  under  a  general  mandate 
only,  so  long  as  he  did  not  exceed 


the  power  that  would  have  been 
committed  to  him  had  his  duties 
been  prescribed  by  the  court  with 
more  particularity  and  detail.  Bur- 
leigh V.  White,  70  Me.  130  (1879). 

It  was  held  in  State  v.  Meln- 
tyre,  53  Me.  214  (1865),  where  a 
master  held  a  hearing  ex  parte  but 
had  given  due  notice  to  the  de- 
fendants and  proceeded  in  their 
absence  only  because  they  de- 
clined to  appear,  that  the  proceed- 
ings cannot  be  defeated  by  the 
defendants  on  such  a  ground;  and 
where  it  was  given  as  a  reason  for 
not  appearing,  that  the  master  had 
expressed  feelings  of  hostility  to 
the  defendants  and  was  not  im- 
partial, if  no  evidence  of  this  was 
offered  to  the  court  and  the  court 
decided  as  a  matter  of  fact,  that 
the  master  was  impartial,  no  ex- 
ception could  be  taken. 

66a.  In  some  jurisdictions  errors 
appearing  on  the  face  of  the  report 
may  be  taken  advantage  of  with- 
out exception.  Shipman  v.  Fletch- 
er, 91  Va.  473  (1895);  Baltimore, 
etc..  Railway  Co.  v.  Vanderwerker, 
44  W.  Va.  229  (1897).  This  is  so 
with  errors  of  law.  Williams  v. 
Spitzer,  203  111.  505  (1903);  Gillett 
V.  Chicago  Title  &  Trust  Co.,  230 
111.  373  (1907);  Lehman  v.  Powe, 
95  Miss.   446   (1910);   Home  Land, 


MASTERS  IN  CHANCERY 


603 


question  as  to  the  propriety  or  validity  of  the  order  of 
reference  on  exceptions;  if  a  party  is  dissatisfied  with 
the  order,  he  must  appeal  or  apply  for  a  rehearing.^'^  So 
where  a  master  refuses  to  receive  proper  evidence,  the 
aggrieved  party  should  not  except,  but  should  apply  for 
an  order  compelling  the  master  to  receive  the  evidence.^^* 
No  grounds  outside  of  the  record  can  be  relied  on  in  excep- 
tions. Exceptions  are  to  be  regarded  so  far  only  as  they 
are  supported  by  the  special  statements  of  the  master,  or 
by  evidence  reported  and  brought  to  the  attention  of  the 
court  by  reference  to  the  particular  testimony  on  which 
the  exception  relies.^^  According  to  strict  chancery 
practice,  no  exceptions  to  a  master's  report  can  be  made 
without  leave  of  court  where  the  objection  was  not  taken 
before  the  master.^^ 


etc.,  Co.  V.  McNamera,  111  Fed. 
822  (1901).  Whether  the  proof 
corresponds  with  the  allegations 
of  the  bill  is  a  question  of  law. 
Marlow  v.  Eich,  252  111.  442 
(1911). 

In  such  cases  application  may  be 
made  before  the  report  is  confirmed 
that  it  may  be  referred  back  to 
the  master  for  review,  or  if  no  such 
application  is  made,  the  court  may 
disregard  the  report  except  so  far 
as  it  is  warranted  by  the  decree. 
White  V.  Walker,  5  Fla.  478  (1854). 

67.  Eaton  v.  Truesdail,  40  Mich. 
1  (1879) ;  Metropolis  National 
Bank  v.  Sprague,  23  N.  J.  Eq.  81 
(1872);  Updike  v.  Doyle,  7  R  I. 
446  (1863);  Musgrove  v.  Lusk,  2 
Tenn,  Ch.  576   (1875). 

67a.  Ward  v.  Jewett,  Walker 
(Mich.)  45  (1842);  Hall  v.  Wes- 
cott,  17  E.  I.  504  (1891).  Contra, 
Baxter  v.  Blodgett,  63  Vt.  629 
(1891). 

68.  Mahone  v.  Williams,  39  Ala. 
202   (1863);   Miller  v.  Whittier,  36 


Me.  585  (1853);  Parker  v.  Nicker- 
son,  137  Mass.  487  (1884);  Harding 
V.  Handy,  11  Wheat.  103,  106,  6 
L.  ed.  429,  436  (1826).  So  in  Sim- 
mons V.  Jacobs,  52  Me.  147  (1862), 
it  was  held  that  where  the  order 
does  not  require  the  master  to  re- 
port the  evidence,  no  testimony 
outside  the  report  as  to  points  de- 
termined in  the  report  is  admissi- 
ble to  prove  facts  set  forth  in  the 
motion  to  set  aside  or  in  exceptions 
to  the  acceptance  of  the  report. 

69.  Illinois.  Gleason  &  Bailey 
Mfg.  Co.  V.  Hoffman,  168  111.  25 
(1897);  Matthews  v.  Whitehorn, 
220  111.  36  (1906). 

Massachusetts.  S.  K.  Edwards 
Hall  Co.  V.  Dresser,  168  Mass.  136 
(1896);  Smedley  v.  Johnson,  196 
Mass.  136   (1907).      . 

Mississippi.  Lehman  v.  Powe, 
95  Miss.  446  (1910). 

New  Jersey.  Mech.  Bank  v. 
Bank,  3  N.  J.  Eq.  437  (1836). 

Rhode  Island.  Teoli  v.  Nardo- 
lillo,  23  E.  I.  87   (1901). 


604 


EQUITY  PRACTICE 


Any  person  aggrieved  may  except,^''*  the  burden  of 
sustaining  tlie  exceptions  resting  on  the  person  except- 


inii'. 


§  368.  Form  of  exceptions.  Exceptions  should  be 
entitled  in  the  usual  way  and  signed  by  counsel.  They 
should  be  brief  and  specific'^"  and  should  point  out  the 


West  Virginia.  Hartman  v. 
Evans,  :5S  \V.  Va.  669  (1893). 

United  States.  Bliss  v.  Ana- 
conda Co.,  156  Fed.  309  (1907). 
Contra,  Fidelity  Ins.  &  Safe  De- 
posit Co.  V.  Shenandoah  Iron  Co., 
42  Fed.  372  (1889). 

No  objection  is  necessary  for 
matter  of  law  apparent  on  the  rec- 
ord. Lehman  v.  Powe,  95  Miss. 
446  (1910). 

In  Illinois,  failure  to  object  will 
be  excused  only  for  accident  or 
surprise.  Prince  v.  Cutler,  69  111. 
267    (1873). 

Objections  should  be  definite  arid 
certain  and  should  notify  the  mas- 
ter precisely  in  what  particular  his 
finding  is  objectionable.  McMan- 
nomy  v.  Chicago,  etc.,  Eailway 
Co.,  167  111.  497   (1897). 

Objections  taken  before  the  mas- 
ter are  not  alone  sufficient.  Ex- 
ceptions to  the  report  must  also 
be  filed,  based  on  the  objection. 
Marble  v.  Thomas,  178  111.  540 
(1899) ;  Hillier  v.  Farrell,  185  Mass, 
434    (1904). 

And  the  exceptions  to  the  report 
should  correspond  with  the  objec- 
tion before  the  master.  Springer 
V.  Kroschell,  166  111.  358  (1897). 

The  objection  contemplated  by 
Eule  31  is  an  objection  not  to  the 
admission  of  evidence  on  the  hear- 
ing, but  a  written  objection  to  the 
report    itself    as    finally    made    up. 


Smedley  v.  Johnson,  190  Mass.  316 
(1907). 

"Requests  and  suggestions" 
filed  with  a  master  are  not  suffi- 
cient objections  to  a  report  to 
authorize  exceptions  under  this 
rule.  Huntress  v.  Bailey,  195 
Mass.  236  (1907). 

By  stipulation  or  order,  objec- 
tions filed  before  master  may  serve 
as  exceptions  filed  with  the  clerk. 
Cooper  V.  Cooper,  164  111.  App.  515 
(1911);  Bliss  V.  Min.  Co.,  156  Fe<l. 
309    (1907). 

69a.  Prince  v.  Cutler,  69  111.  267 
(1873);  Leach  v.  Leach,  72  N.  J. 
Eq.  571  (1907);  Crockett  v.  Etter, 
105  Va.  679   (1906). 

69b.  Christopher  v.  Mattlage,  60 
Atl.  1124  (N.  J.  Ch.  1905);  Medsker 
V.  Bonebrake,  108  U.  S.  66  (1882); 
Henry  v.  Harris,  201  Fed.  872 
(1913). 

70.  Huntress  v.  Hanley,  195 
Mass.  236  (1907);  Sanders  v.  Dow- 
ell,  7  Sm.  &  M.  206  (1846);  Wyatt 
V.  Thompson,  10  W.  Va.  645  (1877). 

Exceptions  are  sometimes  said 
to  be  in  the  nature  of  special  de- 
murrers. Campbell  v.  The  H.  B. 
Chafin  Co.,  1.35  Ala.  527  (1902); 
Springer  v.  Kroschell,  161  111.  358 
(1896) ;  Rader  v.  Yeargin,  85  Tenn. 
486  (1886);  Hall  v.  Hall,  104  Va. 
773  (1906);  Stewart  v.  Stewart,  40 
W.  Va.  65  (1894).  But  see  Foster 
v.  Goddard,  1  Black  (U.  S.)  506, 
17  L.  ed.  228   (1861). 


MASTERS  IN  CHANCERY 


605 


particular  error  upon  wliicli  tlie  excepting  party  relies."^ 
§369.  Time  for  filing  exceptions.  Exceptions  to  a 
master's  report  should  not  be  taken  until  the  report  is 
filed,'-  As  to  the  time  after  the  filing  of  the  report 
within  which  exceptions  may  be  taken,  the  rules  of  the 
various  jurisdictions  differ.  Some  of  them  provide  that 
exceptions  may  be  taken  within  a  certain  time  after  the 
filing  of  the  report,  in  the  absence  of  which  the  report 
will  stand  confirmed  either  at  the  expiration  of  the  time 
limit  or  on  a  rule  day.^^     Others  provide  that  no  excep- 


71.  Illinois.  Parwell  v.  Huling, 
132  111.  112    (1890). 

Maryland.  O 'Sullivan  v.  Sav- 
ings Association,  107  Md.  55 
(1907). 

Massachusetts.  Smedley  v.  John- 
son, 196  Mass.  316  (1907). 

Tennessee.  Green  v.  Lanier,  5 
Heisk.  662    (1871). 

Vermont.  Enright  v.  Amsden, 
70  Vt.  183  (1897). 

Virginia.  Bank  v.  Trigg  Co., 
106  Va.  327   (1907). 

West  Virginia.  Kester  v.  Lyon, 
40  W.  Va.  161  (1897). 

United  States.  Sheffield  Coal, 
etc.,  Co.  V.  Gordon,  151  U.  S.  285, 
38  L.  ed.  164  (1893);  Sanford  v. 
Embry,   151  Fed.  977   (1907). 

In  Alabama,  when  the  exception 
is  to  a  conclusion  of  fact,  the  evi- 
dence or  parts  of  evidence  relied 
on  to  support  the  exception  are 
noted  at  the  foot  of  the  exception 
by  giving  the  name  of  the  wit- 
ness and  the  page  of  the  report. 
Code,  Sec.  3161;  Rule  9:'.. 

In  Massachusetts,  the  iiarty  ex- 
cepting must  point  out  iu  his  brief 
the  particular  in  which  the  ruling 
complained  of  is  prejudicial  to 
him.  Canadian  Religious  Associa- 
tion V.  Parmenter,  180  Mass-  415 
(1901) 


For  examples  of  exceptions  too 
broad  in  their  wording,  see  Young 
V.  Omohundro,  69  Md.  424  (1888); 
Emerson  v.  Atwater,  12  Mich.  314 
(1864);  Poling  v.  Huffman,  48  W. 
Va.   639    (1900). 

An  exception  which  includes 
matter  not  properly  open  thereto 
may  be  overruled  altogether. 
Hoagland  v.  Saul,  53  Atl.  704  (N. 
J.  Ch.  1902);  Enright  v.  Amsden, 
70  Vt.   183   (1896). 

72.  .Jewell  v.  Paper  Co.,  101  111. 
57  (1881).  In  Alabama,  no  ex- 
ceptions can  be  taken  before  the 
register  to  the  draft  of  a  report. 
Rule  92.  They  should  be  taken  in 
the  chancery  court.  Clark  v.  Knox, 
70  Ala.  607,  625  (1881). 

In  Massachusetts,  the  exceptions 
that  may  be  taken  to  a  report  are 
to  the  report  as  finally  made  up 
and  not  to  the  rulings  of  the  mas- 
ter during  the  hearing.  The  rules 
contemplate  objections  in  writing 
to  the  report  after  the  draft  of  it 
has  been  settled,  which  objections 
are  to  be  appended  to  the  report. 
Smedley  v.  Johnson,  196  Mass.  316 
(1907). 

73.  In  Florida,  one  month,  Rule 
84;  Rhode  Island,  thirty  days.  Rule 
40(-  Tennessee,  on  or  before  the 
second    day  of  the   term  to   which 


606 


EQUITY  PRACTICE 


tions  will  be  allowed  without  a  special  order  of  the  court 
unless  filed  within  a  certain  period,'"*  and  others  fix  no 
limit  for  the  filing  of  exceptions  other  than  by  motion  of 
either  party  that  the  master's  report  be  confirmed.'^ 

Either  party  may  set  the  exceptions  for  argument  on 
motion  '  ^  and  it  belongs  to  the  excepting  party  to  open 
and  close."^^  If  upon  argument  or  default  the  exceptions 
are  overruled  the  report  stands  as  if  confiimed,  and  if 
exceptions  are  allowed  the  report  need  not  be  referred  to 
the  master  to  be  reviewed,  but  stands  as  corrected  by  the 
exceptions  and  the  cause  proceeds  as  if  the  report  had 
been  confirmed  in  the  first  instance  without  any  excep- 
tions."^ The  nile  as  to  costs  is  that  each  party  shall 
recover  costs  of  those  exceptions  on  which  he  succeeds.'^ 


the  report  is  made  returnable,  un- 
less the  cause  is  sooner  reached  on 
the  docket,  and  in  that  event  the 
exceptions  must  be  filed  at  the 
calling  of  the  cause, — Rule  4,  Sec. 
12;  Federal  courts,  twenty  days, 
U.  S.  Eq.  Rule  66  (1913). 

74.  Huntress  v.  Allen,  195  Mass. 
226  (1907)  (fifteen  days);  Weber 
V.  Weitling,  18  N.  J.  Eq.  39  (eight 
days)  (1866);  A'ermont,  Rule  39 
(fifteen  days) ;  Ward  v.  Ward,  40 
W.  Va.  611,  52  Am.  St.  Rep.  911, 
29  L.  R.  A.  449  (1895)   (ten  days). 

75.  See  Maine  Eq.  Rule  32. 

All  exceptions  must  be  presented 
at  the  hearing  on  the  acceptance 
of  the  master's  report  or  else  they 
are  barred  by  the  decree  of  con- 
firmation. Mitchell  V.  Burnham, 
57  Me.  314   (1869). 

Exceptions  cannot  be  filed  after 
the  report  is  confirmed  by  final 
decree.  Findley  v.  Smith,  42  W. 
Va.  299  (1896);  but  see  contra, 
Wooding  V.  Bradley,  76  Va.  614 
(1881). 

Nor  can  they  be  taken  after  an 
appeal  from  an   order  based  on  a 


report.      Sanderson    v.    Sanderson, 
20  Fla.  292    (1883). 

76.  Morris  v.  Taylor,  23  N.  J.  Eq. 
131    (1872). 

On  reasonable  notice.  Florida, 
Rule   84. 

Any  day  in  the  term  on  applica- 
tion of  either  party  and  five  days' 
notice.     New  Jersey,  Rule  12. 

Notice  given  to,  adverse  party  by 
clerk  on  filing  exceptions  and  then 
set  for  argument.  Massachusetts, 
Rule   32. 

Exceptions  shall  upon  filing  be 
immediately  set  down  by  the  clerk 
for  argument  and  shall  be  disposed 
of  by  the  court  when  the  cause  is 
reached  for  trial.  Tennessee,  Rule 
4,  Sec.  12. 

77.  Howe  V.  Russell,  36  Me.  115 
(1853). 

78.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.   1318. 

79.  Hunn  v.  Norton,  Hopk.  Ch. 
(N.  Y.)  344  (1824);  see  Sanford  v. 
Clarke,  38  N.  J.  Eq.  265   (1884). 

By  U.  S.  Eq.  Rule  67  (1913), 
the  party  whose  exceptions  are 
overruled,  shall,  for   every   excep- 


MASTERS  IN  CHANCERY 


607 


§  370.  Re-reference.  The  court  may  refer  a  report  to 
the  master  for  review  u]pon  the  allowance  of  exceptions,  if 
necessary,  or  upon  grounds  independent  of  the  exceptions 
or  even  where  no  exceptions  have  been  taken,  either  of  its 
own  volition  or  upon  motion.^"  Thus  a  report  may  be 
referred  to  the  master  where  the  facts  are  imperfectly 
stated  in  the  report  so  that  no  judgment  can  be  formed  as 
to  the  projDer  conclusion,^ ^  or  if  the  existing  evidence  is 
unsatisfactory  but  it  is  possible  that  other  evidence  exists 
which  in  consequence  of  a  favorable  finding  has  not  been 
adduced,  or  if  the  nature  of  the  matter  contested  or  the 
frame  of  the  exceptions  is  such  that  their  allowance  shows 
a  necessity  for  further  investigation,^-  or  if  the  report  is 
based  on  erroneous  views  of  the  master  on  important 
matters. ^^    In  general  the  court  will  not  order  a  report 


tion  overruled,  pay  five  dollars 
costs  to  the  other  party,  and  for 
every  exception  allowed  shall  be 
entitled  to  the  same  costs. 

80.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
1320. 

81.  Pinneo  v.  Goodspeed,  120  111. 
524,  532  (1887);  Waterman  v. 
Buck,  63  Vt.  544   (1891). 

82.  Fuller  v.  Fuller,  23  Fla.  236 
(1887);  Worthington  v.  Hiss,  70 
Md.  172  (1889);  Williams  v.  Don- 
aghe,  1  Band.   (Va.)   300   (1823). 

If  the  defendant,  relying  upon 
the  insuf3Eiciency  of  the  plaintiff's 
evidence,  introduces  no  evidence 
until  after  the  master  has  filed  his 
report,  the  chancellor  may,  upon  a 
proper  showing,  order  the  master 
to  reopen  the  case  and  hear  the 
defendant 's  evidence.  Brewster  v. 
Cahill,  199  111.  309  (1902). 

Where  the  order  of  reference 
does  not  direct  the  master  to  re- 
port the  evidence  a  recommittal 
for  that  purpose  is  within  the  dis- 
cretion   of    the    court.      Cook    v. 


Scheffreen,  102  N.  E.  715  (Mass. 
1913).  A  recommittal  for  that 
purpose  is  not  favored.  Matthews 
V.  Colburn,  102  N.  E.  941  (Mass. 
1913). 

83.  Blauvelt  v.  Ackerman,  20  N. 
J.   Eq.   141    (1869). 

Report  should  be  recommitted 
where  master  commits  an  error. 
Brokaw  v.  McDougall,  20  Fla.  212 
(1883);  Lazwell  v.  Bobbins,  39  111. 
209   (1866). 

Or  has  refused  to  hear  counsel 
and  argument.  Whiteside  v.  Pul- 
liam,  25  111.  257   (1861). 

Or  has  failed  to  find  all  matters 
referred  to  him  and  material  to 
the  case.  Kennedy  v.  Welch,  196 
Mass.  592  (1907);  Freehold  Dutch 
Church  V.  Smock,  1  N.  J.  Eq.  148 
(1830);  Jones  v.  Byrne,  94  Va.  951 
(1897);  King  v.  Burdett,  44  W.  Va. 
561   (1898). 

Or  for  failure  to  state  an  item- 
ized account.  Dewing  v.  Hutton, 
40  W.  Va.  521   (1895). 

Or  to   conform  to   new  issues  or 


608 


EQUITY  PRACTICE 


reviewed  after  it  lias  been  confirmed  except  in  very  strong 
cases  of  fraud,  surprise  or  mistake.'"^^  This  whole  question 
as  to  when  a  report  shall  be  referred  for  review  is  largely 
within  the  discretion  of  the  court. ^•'' 

§  371.  Proceedings  under  a  re-reference.  AMien  a  report 
is  referred  to  a  master  for  review  it  is  not  open  to  be 
reviewed  by  him  generally  unless  the  court  expressly 
authorizes  him  to  review  it  generally,  or  the  nature  and 
scope  of  the  exceptions  allowed  necessarily  embrace  the 
whole  subject  matter  of  the  account  originally  taken  by 
the  master.'^''  If  the  report  was  referred  after  an  allow- 
ance of  exceptions,  the  master  cannot  come  to  any  con- 
clusion inconsistent  with  the  tenns  of  tlie  exceptions.  The 
master  is  permitted  to  take  such  additional  evidence  as 
may  be  necessary,  for  the  purpose  of  the  review. ^^ 


with  regarrl  to  the  rights  of  new 
parties.  Mears  v.  Dole,  135  Mass. 
508  (1883);  Holt  v.  Holt,  46  W. 
Va.  397   (1899). 

Or  where  master  has  erroneously 
rejected  evidence.  Brueggestradt 
V.  Ludwig,  184  111.  24  (1900). 

In  Fitchburg  Steam  Engine  Co. 
V.  Potter,  211  111.  138  (1904),  the 
case  was  referred  to  a  new  mas- 
ter for  improper  conduct  of  the 
first  master  in  making  up  his  re- 
port. 

84.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1321.  See  Cochran  v.  Lynah,  1 
Bailey  Eq.  (S.  C.)  514;  Turner  v. 
Turner,  1  J.  &  W.  (Eng.)  39.  In 
Pitman  v.  Thornton,  65  Me.  95 
(1876),  it  is  held  that  the  court  has 
the  power  to  accept,  reject  or  re- 
commit the  reports  of  masters  in 
cases  in  equity  at  any  time  before 
final  decree. 

85.  Eichardson  v.  Horton,  139 
Ala.  350  (1903);  Matthews  v. 
Whitehorn,  220  111.  36,  89  (1906); 
Taber    v.    Breck,    192    Mass.    355 


(1906);  Allen's  Adm 'rs  v.  Allen's 
Adm'rs,  79  Vt.  173   (1906). 

Xo  recommittal  where  necessity 
arises  from  negligence  of  counsel. 
Gould  V.  Elgin  City  Banking  Co., 
136  111.  60    (1891). 

Where  exceptions  to  a  report  are 
sustained  and  relate  to  but  a  few 
items,  and  the  evidence  is  reported, 
the  court  need  not  recommit  but 
may  make  its  own  finding.  Smythe 
V.  JNIcKernan,  41  111.  App.  132 
(1891). 

86.  The  master  is  confined  to  or- 
der of  recommittal.  Harris  v.  Fer- 
ris, 18  Fla.  84  (1881). 

No  new  notice  is  required  on 
recommittal  unless  new  evidence  is 
taken.  Prince  v.  Cutler,  69  111.  267 
(1873). 

87.  Where  a  report  is  recommit- 
ted exceptions  to  the  first  report 
will  not  serve  as  exceptions  to  the 
second  unless  they  are  renewed. 
King  v.  Burdett,  44  W.  Va.  561 
(1898). 


MASTERS  IN  CHANCERY 


609 


§  372.  Compensation.  The  compensation  to  be  allowed 
to  masters  for  their  services  where  not  regulated  by 
statute  ^®  or  by  a  stipulation  ^^  should  be  fixed  by  the  court 
in  its  discretion  in  each  case,  having  regard  to  all  the 
circumstances  thereof.^"    In  most  jurisdictions  the  master 


88.  Fees  fixed  by  statute  are 
mandatory  and  cannot  be  exceed- 
ed. Eoby  V.  Chicago  Title,  etc., 
Co.,  194  111.  228  (1902). 

Where  a  register  in  chancery  is 
entitled  to  a  stated  compensation 
by  rule  of  court  a  special  order  de- 
priving him  of  it  in  a  particular 
case  would  be  deprivation  of  vest- 
ed rights  by  retrospective  legisla- 
tion. In  re  Du  Pont,  8  Del.  Ch. 
442   (1900). 

89.  Finance  Committee  v.  War- 
ren, 82  Fed.  525   (1897). 

The  solicitors  cannot  by  stipula- 
tion interfere  with  the  court's  dis- 
cretion where  such  discretion  is 
given  to  it  by  statute.  Polakow 
V.  Leafgreen,  178  111.  App.  566 
(1913). 

90.  Florida,  Eule  74;  Fitehburg 
Steam  Engine  Co.  v.  Potter,  211  111. 
138  (1904);  J.  &  A.,  115621;  111., 
Rev.  St.,  Chap.  53,  Sec.  20;  Maine, 
R.  S.,  Chap.  79,  Sec.  10  and  Equity 
Rule  31;  Massachusetts,  Rev.  Laws, 
Chap.  165,  Sec.  54;  U.  S.,  Eq.  Rule 
68  (1913). 

A  master 's  report  should  give  an 
itemized  statement  of  the  services 
rendered  and  the  fees  allowed. 
Healy  v.  Protection  Mutual  Fire 
Ins.  Co.,  213  111.  99   (1904). 

And  where  his  claim  is  objected 
to,  he  should  support  his  claim 
with  proof  showing  the  services 
rendered,  the  time  actually  and 
necessarily  devoted  to  the  work, 
and  such  other  facts  as  would  ena- 
ble the  court  to  intelligently  de- 
termine  the   rights   of  the  parties. 


Bentley  v.  Ross,  250  111.  182 
(1911). 

Objections  to  master's  fees  need 
not  be  made  before  the  master  but 
may  be  made  after  the  report  is 
returned  to  the  court.  Gottschalk 
V.  Noyes,  225  111.  94  (1906). 

Where  service  of  master  is  ren- 
dered in  relation  to  a  fund  in  court, 
the  court  may  order  his  fees  to  be 
paid  out  of  the  fund.  Colebrook 
V.  Bass,  143  111.  App.  530  (1908). 

An  allowance  to  a  master  of  fif- 
teen cents  per  folio  for  taking  825 
folios  of  testimony  is  not  exorbit- 
ant. Manowsky  v.  Stephan,  233 
111.  409   (1908). 

A  claim  "for  hearing  argu- 
ments and  examining  questions  in 
issue  and  reporting  conclusions 
thereon,"  is  not  properly  itemized 
in  that  it  does  not  show  the  time 
necessarily  employed.  Wirzbicky 
V.  Dranicki,  235  111.  106   (1908). 

The  fee  should  be  fixed  after  the 
completion  of  the  services  and  a 
hearing  by  the  parties.  Schnadt  v. 
Davis,  185  111.  476   (1900). 

A  master  should  not  take  pay 
without  an  order  fixing  his  fee,  or 
the  consent  of  parties.  In  re  Pow- 
ell, 163  Pa.  349   (1894). 

Masters  may  be  allowed  the  fees 
prescribed  by  statute  for  taking 
and  transcribing  testimony  even 
though  the  work  is  done  by  a 
stenographer  who  is  paid  by  one  of 
the  parties.  Ward  v.  Clendenning, 
245  111.  206   (1910). 

Sec.  20  of  the  Fees  and  Salaries 
Act    of    Illinois    authorizes    an    al- 


610 


EQUITY  PRACTICE 


cannot  retain  his  report  as  security  for  his  compensation, 
but  when  it  is  allowed  he  is  entitled  to  an  attachments^ 
for  the  amount  against  the  party. ■'- 


lowance  to  a  master  of  fifteen 
cents  per  hundred  words  for  the 
contents  of  documentary  evidence 
offered  before  the  master  as  well 
as  for  talcing  and  reporting  oral 
testimony.  Donham  v.  Joyce,  257 
111.  112  (1913). 

For  examples  of  master's  fees 
which  were  held  to  be  not  exces- 
sive, see  Patterson  a*.  Northern 
Trust  Co.,  170  111.  App.  501  (1912) 
($1,202);  Stahl  v.  Stahl,  166  111. 
App.  236  (1911)    ($450). 

An  order  of  dismissal  "without 
costs"  does  not  affect  the  master's 
rights  to  his  fees,  even  though  such 
order  is  consented  to  by  the  de- 
fendants. Strook  V.  Jamieson,  139 
111.  App.  339   (1908). 

Where  a  report  is  suppressed  for 
improper  conduct  the  master  is  not 
entitled  to  fees  unless  on  a  reref- 
erence   his   report    of   testimony   is 


used  by  consent,  when  he  may  be 
allowed  the  statutory  fees,  taking 
and  reporting  proof.  Fitchburg 
Steam  Engine  Co.  v.  Potter,  211 
111.  138   (1904). 

Fees  cannot  be  demanded  as  a 
condition  to  allowing  parties  to 
give  evidence.  Elos  v.  Flanedy, 
207  111.  230  (1904). 

91.  Florida,  Eule  74;  U.  S.,  Eq. 
Eule  68   (1913). 

Or  it  may  be  declared  a  lien 
upon  the  property.  Manowsky  v. 
Stephan,  233  111.  409  (1908). 

92.  In  some  jurisdictions  it  is 
provided  that  the  fees  of  the  mas- 
ter shall  be  paid  by  the  counties 
in  which  they  are  appointed.  Mas- 
sachusetts, Bev.  Laws,  Chap.  165, 
Sec.  54;  Maine,  E.  S.,  Chap.  79,  Sec. 
10,  as  amended  by  Chap.  28,  Laws 
of  1912  (discretionary). 


CHAPTER  XXI 

ISSUES  TO  JURIES 

§  373.  Nature  and  purposes  of  issues.  Although  courts 
have  always  possessed  undoubted  jurisdiction  to  decide 
both  questions  of  law  and  of  fact,  yet  it  was  customary 
in  the  early  English  practice  where  the  evidence  on  a 
question  of  fact  was  conflicting,  for  the  chancellor  in  his 
discretion  to  direct  the  issue  of  fact  to  be  tried  by  a  jury 
at  the  bar  of  one  of  the  courts  of  law.  The  verdict  of  the 
jury  was  then  reported  to  the  court  of  chancery  "for  the 
better  information  of  its  conscience"  in  making  a  tinal 
decree.^  This  practice  still  prevails  in  the  Federal  and 
most  of  the  state  courts  of  equity  in  this  country. 

§  374.  Constitutional  right  to  jury  trial  in  equity  under 
Federal  constitution.  There  is  no  constitutional  right  to 
a  trial  by  jury  in  equity  under  the  Federal  constitution  as 
construed  by  the  United  States  courts.  The  constitution 
of  the  United  States  by  the  seventh  amendment  preserves 
the  right  of  jury  trial  only  ' '  in  suits  at  common  law  where 
the  value  in  controversy  shall  exceed  twenty  dollars." 
This  has  been  construed  by  the  court  to  secure  the  right  of 
jury  trial  in  all  cases  of  legal  rights  adequately  remediable 

1.  Under  the  English  practice  and  the    issues    presiding    at    the    trial 

the  former  practice  in  the  United  thereof.     See   N.   H.   Pub.   St.,   Ch. 

States,    issues    in    chancery    cases  228,    Sec.    21;    W.    Va.    Code,    Sec 

were   tried   by  a  jury  in   separate  4908;  Wilson  v.  Eiddle,  123  U.  S. 

common  law  courts.    Milk  v.  Moore,  608,  31  L.  ed.  280   (1887). 
39  111.  587  (1864);  Tibbetts  v.  Per-  In   Alabama   the   issues   may   be 

kins,  20  N.  H.  275  (1850).  tried   before   a   jury   summoned   to 

It   is  now  the  practice  in  many  attend  a  court  of  chancery,  or  they 

jurisdictions  to  try  the  issues  at  the  niay  be  certified  to  the  circuit  court, 

bar  of  the  court  ordering  them  on  Code,  Sec.  3201. 
its  law  side,  the  judge  who  directed 

611 


612  EQUITY  PRACTICE 

at  common  law.  But  although  such  rights  might  in  some 
instances,  as  in  cases  of  fraud,  be  equally  remediable  under 
the  concurrent  jurisdiction  of  equity,  nevertheless  it  is 
held  that  the  parties  must  be  confined  to  their  action  at 
law  only,  since  equity  does  not  provide  a  jury  trial  accord- 
ing to  the  course  of  the  common  law  as  required  by  the  con- 
stitution, but  merely  advisor}^  verdicts  to  aid  the  judg- 
ment of  the  chancellor.  In  other  words  it  is  held  that  the 
constitution  did  not  guarantee  the  right  to  a  jury  trial  in 
equity  because  a  strict  common  law  jury  trial  was  not 
employed  in  chancery  practiee.- 

§  375.  — Under  state  constitutions.  The  provision  of 
the  Federal  constitution  preserving  trial  by  jury  is  held 
not  to  apply  to  the  courts  of  the  individual  states.  The 
question  there  depends  upon  the  provisions  of  the  respec- 
tive state  constitutions.  In  most  states  there  is  a  general 
provision  in  the  constitution  that  the  right  of  trial  by 
jury  shall  remain  inviolate.^  Some  constitutions  provide 
for  the  preservation  of  the  right  of  trial  by  jury  except 
"in  cases  heretofore  used  and  practiced.""*  One  state 
constitution  provides  that  the  right  shall  be  preserved  if 
required  by  either  party.^ 

All  these  provisions  however  worded  are  uniformly  con- 
strued as  not  conferring  a  right  of  trial  by  juiy  in  all 
classes  of  cases,  but  merely  as  guaranteeing  the  continu- 
ance of  the  right  unchanged  as  it  existed  either  at  com- 
mon law  or  by  statute  in  the  particular  state  at  the  time 
of  the  adoption  of  the  constitution.  Consequently  there 
is  no  constitutional  right  to  a  trial  by  jury  in  matters 

2.  Gates  v.  Allen,  149  U.  S.  451,  111.  2,  5;  Md.  Decln.  Rts.  5;  Mich. 
459  (1892);  Whitehead  v.  Shattuck,  II,  13;  Miss.  31;  N.  J.  1,7;  Pa.  1,  6; 
138  U.  S.  146,  151  (1890);  Buzard  v.  R.  I.  1,  15;  Tenn.  1,  6;  Va.  B.  Rts. 
Houston,  119  U.  S.  347  (1886) ;  Hipp  10. 

V.  Babin,  19  How.  (U.  S.)  271,  278  4.  111.,  Me.,  Md.,  Mass.,  N.  H.,  Pa. 

(1856).  5.  W.  Va.  3,  13. 

3.  Del.   1,  4;  Fla.  Decln.  Rts.  3; 


ISSUES  TO  JURIES 


613 


properly  within  the  exclusive  or  concurrent  jurisdiction 
of  equity  at  that  time." 

The  right  of  trial  by  jury  cannot  be  defeated  by  giving 
equity  exclusive  jurisdiction  over  a  right  remediable  at 
common  law  before  the  adoption  of  the  constitution." 
In  such  cases  an  issue  framed  for  the  jury  in  equity  is 
sufficient  to  preserve  the  constitutional  right  without 
sending  the  parties  to  an  action  at  common  law.^ 


6.  Florida.  Wiggins  v.  Williams, 
36  Fla.  637,  30  L.  E.  A.  754  (1895). 

Illinois.  Keith  v.  Kenkleman,  173 
111.  137  (1898). 

Maine.  Farnsworth  v.  Whiting, 
106  Me.  430  (1910). 

Massachusetts,  Lacelles  v.  Clark, 
204  Mass.  362  (1910);  Parker  v. 
Simpson,  180  Mass.  334  (1902). 

Michigan.  Roades  v.  McNamara, 
135  Mich.  644  (1904). 

New  Hampshire.  State  ex  rel. 
Rhodes  v.  Saunders,  66  N.  H.  39,  18 
L.  R.  A.  66  (1889). 

West  Virginia.  Davis  v.  Settle, 
43  W.  Va.  17  (1896);  Broderick  v. 
Broderiek,  28  W.  Va.  378  (1886). 

This  is  true  whether  the  equitable 
cause  of  action  existed  at  the  time 
of  the  adoption  of  the  constitution 
or  was  created  subsequently  by 
statute.  Hathorne  v.  Panama  Park 
Co.,  44  Fla.  194,  103  Am.  St.  Rep. 
138  (1902);  Parmelee  v.  Price,  208 
111.  544  (1904);  Ball  v.  Ridge  Cop- 
per Co.,  118  Mich.  7   (1898). 

Where  a  new  class  of  cases  is  di- 
rected by  statute  to  be  tried  in 
chancery,  the  right  of  trial  by  jury 
is  not  infringed  if  when  tested  by 
the  general  principles  of  equity,  it 
appears  that  such  cases  are  of  an 
equitable  nature  and  can  be  more 
appropriately  tried  in  a  court  of 
equity  than  a  court  of  law.  Parme- 
lee V.  Price,  208  111.  544  (1904). 


7.  Turnes  v.  Brenckle,  249  111.  394 
(1911);  Haines  App.,  73  Pa.  St.  169 
(1873);  Cecil  v.  Clark,  44  W.  Va. 
659  (1898). 

8.  Gage  v.  Ewing,  107  111.  11 
(1883);  Powers  v.  Raymond,  137 
Mass.  483  (1884);  and  see  Carleton 
V.  Rugg,  149  Mass  550  (1889). 

In  Powers  v.  Raymond,  above 
cited,  the  plaintiff  brought  a  bill  in 
equity  under  a  statute  of  1875, 
Chap.  235,  for  the  collection  of  a 
debt  out  of  property  alleged  to  have 
been  fraudulently  conveyed  by  de- 
fendant to  a  third  person.  The  ex- 
istence of  the  debt  was  denied  by 
defendant  and  a  jury  trial  de- 
manded in  his  answer.  The  court 
said,  "It  is  plain  that  the  question 
whether  the  Raj-monds  are  indebted 
to  the  plaintiff  for  goods  sold  and 
delivered  is  a  controversy  concern- 
ing property,  which,  when  the  con- 
stitution was  adopted,  had  been  al- 
ways tried  by  a  jury  in  Massachu- 
setts since  the  province  charter,  had 
been  usually  so  tried  before  that 
charter,  and  had  been  so  tried  in 
England;  that  it  is  not  a  case  in 
which  a  trial  otherwise  than  by  jury 
had  theretofore  been  used  and  prac- 
ticed, or  a  case  in  its  essential  fea- 
tures unknown  to  the  jurisprudence 
of  the  province  and  the  state  at  that 
time.  The  remedy  which  the  plain- 
tiff seeks  is  substantially  the  com- 


614 


EQUITY  PRACTICE 


§  376.  Waiver  of  right  of  jury  trial.  In  those  cases 
where  a  party  has  a  constitutional  or  statutory  right  to 
a  trial  by  jury  in  equity,  he  waives  such  right  unless  it  is 


mon  law  remedy.  .  .  .  The 
rights  sought  to  be  determined  and 
enforced  are  essentially  legal,  as 
distinguished  from  equitable  rights. 
The  statute  has  changed  the  mode 
of  procedure,  but  it  would  be  trifl- 
ing with  the  constitution  to  hold 
that,  by  changing  the  forms  of  pro- 
cedure, the  substantial  rights  de- 
clared by  it  can  be  taken  away.  In 
all  controversies  which  are  within 
the  purview  of  that  article  of  the 
Declaration  of  Eights,  the  'method 
of  procedure'  of  a  trial  by  jury 
must  be  held  sacred,  whatever  the 
other  forms  of  procedure  may  be. 
...  We  think  they  (the  de- 
fendants) had  the  right,  under  the 
constitution,  to  have  issues  to  a 
jury  framed  covering  the  material 
facts  at  issue  between  them  and  the 
plaintiff. ' ' 

It  will  be  seen  by  the  opinion  of 
the  court  above  quoted  that  fram- 
ing an  issue  for  a  jury  in  the  equity 
cause  is  apparently  regarded  as 
sufficient  to  satisfy  the  require- 
ments of  the  constitution  without 
sending  the  parties  to  an  action  at 
law.  The  point  as  to  the  verdict 
on  issue  framed  in  equity  being  ad- 
visory merely  upon  the  chancellor 
and  not  the  same  as  a  verdict  ac- 
cording to  the  course  of  the  common 
law  is  not  raised.  Upon  this  point 
Greenleaf  on  Evidence,  p.  262, 
says  "It  is  obvious,  however,  that 
this  power  in  the  chancellor  to  dis- 
regard a  finding  of  the  jury  cannot 
exist  in  any  of  the  United  States 
where  the  trial  of  facts  in  cases  in 
equity  is  secured  to  the  parties  by 
constitutional   or  statute  law  as   a 


matter  of  right."  But  the  supreme 
court  of  Maine  in  Larrabee  v. 
Grant,  70  Me.  79  (1879)  declared 
that  they  could  not  fully  concur 
with  this  view  of  the  learned  au- 
thor, that  while  the  power  might 
be  more  sparingly  and  cautiously 
used,  that  extreme  cases  would  be 
likely  to  arise  requiring  the  exer- 
cise of  such  discretionary  power  on 
the  part  of  the  court.  This  is 
obviously  so,  since  the  court  would 
have  the  power  at  common  law  to 
disregard  the  verdict  in  the  sense 
of  setting  it  aside  in  extreme  cases 
such  as  improper  influence,  fraud, 
mistake,  etc.,  and  certainly  there  is 
no  reason  why  there  should  be  any 
less  right  to  set  it  aside  in  equity 
than  at  law  under  the  same  con- 
stitutional guaranty.  We  do  not 
understand  that  by  the  word  "dis- 
regard" Mr.  Greenleaf  means  that 
the  court  would  not  have  the  power 
to  set  aside  a  verdict  under  any  cir- 
cumstances, but  merely  that  the 
chancellor's  power,  that  is  the 
})o\vcr  usually  exercised  in  chancery 
practice,  would  not  exist.  In  this 
it  is  clear  that  Mr.  Greenleaf  and 
the  Maine  court  both  meant  simply 
that  where  the  right  of  trial  by  jury 
is  secured  by  the  constitution  in 
equity  cases,  the  verdict  cannot  be 
set  aside  except  for  reasons  which 
would  justify  setting  aside  a  ver- 
dict at  law.  See  t*lso  in  support  of 
this  proposition.  Meeker  v.  Meeker, 
75  Til.  260  (1874);  James  v.  Brooks, 
6  Heisk.  (Tenn.)  153  (1871).  Nor 
is  it  engrafting  any  incongruity 
upon  the  equity  system  or  in  its 
effect   limiting   the   powers   of   the 


ISSUES  TO  JURIES 


615 


seasonably  asserted,^  After  hearing  has  been  had  in  a 
cause  '"  or  the  cause  has  been  set  down  to  be  heard  by 
the  court  ^  ^  without  a  request  being  made  for  a  trial  by 
jury,  or  after  a  hearing  has  been  had  before  a  master  ^-  or 
the  master's  report  has  been  filed,^^  a  party  can  no  longer 
demand  a  jury  trial  as  a  matter  of  right.  And  a  fortiori 
where  a  jury  trial  is  discretionary  with  the  court,  a  party 


chancellor  to  any  material  extent, 
for  in  actual  practice  to-day  the 
verdict  of  a  jury  in  an  action  at 
law  is  set  aside  by  the  court  for  no 
more  compelling  reasons  than  those 
laid  down  in  the  books  as  sufficient 
to  justify  a  chancellor  in  disregard- 
ing the  findings  of  a  jury  upon  is- 
sues of  fact  in  equity  suits.  In 
Metcalf  V.  Metcalf,  85  Me.  477 
(1893),  the  court  says  that  it  is  an 
established  principle  applicable  to 
courts  of  equity,  that  the  verdict  of 
a  jury  upon  an  issue  of  fact  al- 
though advisory  merely,  will  be  sus- 
tained "unless  there  appears  some 
material  or  weighty  reason  why  the 
verdict  does  not  satisfy  the  court." 
This  is  equivalent  to  being  ' '  mani- 
festly against  the  weight  of  evi- 
dence" which  is  the  common  gromid 
for  a  motion  for  new  trial  at  law. 
As  a  matter  of  fact  many  cases  ap- 
pear in  the  books  to-day  where  a 
verdict  has  been  set  aside  in  an 
action  at  law,  when  no  reasons  are 
found  in  the  report  of  the  case,  ex- 
cept that  it  did  not  satisfy  the  con- 
science of  the  court  upon  a  careful 
examination  of  the  evidence,  al- 
though the  rule  governing  the  prac- 
tice in  actions  at  law  is  stated  much 
more  strictly  in  theory. 

9.  Wolf  V.  Bollinger,  62  111.  .368 
(1872);  Parker  v.  Nickerson,  137 
Mass.  487  (1884);  Mich.  Const., 
Art.  II,  Sec.  13;  Dock  Co.  v.  Trus- 
tees, 37  N.  J.  Eq.  267  (1883). 


By  the  constitutions  of  many 
states  the  right  to  a  trial  by  jury 
may  be  waived  by  the  parties  in  all 
cases  in  the  manner  prescribed  by 
law.  Del.  4,  23;  Fla.  Decln.  Ets.  2; 
Md.  4,  1,  8;  Pa.  5,  27;  Vt.  2,  31. 

Waiver  of  the  right  of  trial  by 
jury  in  West  Virginia  must  be  by 
consent  entered  of  record  and  can- 
not be  inferred  from  the  fact  that 
the  court  tried  the  cause  without 
objection.  Lipscomb 's  Admr.  v. 
Condon,  56  W.  Va.  416,  67  L.  E.  A. 
670,  107  A.  S.  E.  938  (1904). 

10.  Wolf  V.  Bollinger,  62  111.  368 
(1872);  Blanchard  v.  Cooke,  147 
Mass.  215  (1888). 

11.  Dole  V.  Wooldredge,  142  Mass. 
161  (1886). 

12.  Freeland  v.  Wright,  154  Mass. 
492  (1891). 

13.  Parker  v.  Nickerson,  137 
Mass.  487,  492  (1884).  But  see  At- 
lanta Mills  V.  Mason,  120  Mass.  244, 
which  held  that  the  court  in  its  dis- 
cretion, may  doubtless  order  an  is- 
sue to  a  jury  even  after  the  coming 
in  of  the  master 's  report,  if  the  evi- 
dence produced  before  the  master 
appears  to  be  conflicting,  or  his  find- 
ing thereon  is  unsatisfactory,  or  the 
hearing  before  him  has  developed 
new  questions  of  fact,  or  if,  for 
other  reasons,  the  court  deems  it  fit 
that  any  issue  in  the  cause  should 
be  tried  by  a  jury. 


616 


EQUITY  PRACTICE 


cannot  object  that  issues  are  not  directed  where  they  are 
not  seasonably  requested.^* 

§  377.  Where  no  constitutional  right.  In  some  states 
by  statute  either  party  may  demand  a  jury  trial  on  any 
material  facts,  and  the  findings  shall  have  the  same  effect 
as  a  finding  at  law.^^  In  most  jurisdictions,  however,  the 
general  chancery  rule  prevails  that  the  chancellor  may  in 
his  discretion,  either  on  his  own  motion  or  upon  motion 
of  a  party,  submit  issues  to  the  jury  to  satisfy  his  con- 
science.^^ 


14.  Philips  V.  E.lsall,  127  111.  535, 
548  (1889);  Atlanta  Mills  v.  Mason, 
120  Mass.  244  (1876). 

15.  Tenn.  Code  (1896)  Sees.  6282- 
6286;  Burton  v.  Farmers'  Bldg.  As- 
sociation, 104  Tenn.  414  (1900).  In 
Mississippi  the  chancery  court 
shall  cause  an  issue  to  be  made  up 
in  writing  where  a  jury  trial  is 
"necessary  and  proper."  Miss. 
Code,  Sec.  558.  But  under  this 
statute,  the  court  may  determine  in 
what  case  a  jury  trial  is  "neces- 
sary and  proper."  First  State 
Bank  v.  Lincoln,  97  Miss.  720 
(1910). 

In  some  states  by  statute,  a  jury 
trial  is  allowed  as  a  matter  of  right 
in  certain  classes  of  equity  cases. 
See  111.  E.  S.,  Chap.  148,  Sec.  7,  J.  & 
A.  1[  11548,  providing  for  the  sub- 
mission to  a  jury  of  issue  arising 
upon  the  contest  of  a  will  on  the 
ground  of  insanity  of  the  testator 
or  of  his  want  of  mental  capacity. 

In  New  Jersey,  the  statute  pro- 
vides that  upon  application  of  any 
party  to  a  suit  to  quiet  title,  an 
issue  to  the  jury  must  be  directed. 
Brady  v.  Carteret  Realty  Co.,  68 
N.  J.  Eq.  55  (1904). 

In  the  absence  of  express  consti- 
tutional or  statutory  provisions 
there  is  no  right  of  trial  by  jury  in 


suits  in  equity.  Smith  v.  Croom,  7 
Fla.  180  (1857);  Turnes  v.  Brenckle, 
249  111.  394,  403  (1911);  Ross  v. 
New  England  Mutual  Insurance 
Co.,  120  Mass.  113  (1876);  Frank's 
App.,  59  Pa.  St.  190  (1868). 

In  Brown  v.  Kalamazoo  Circuit 
Judge,  75  Mich.  274,  13  Am.  St.  Rep. 
538,  5  L.  R.  A.  226  (1889),  it  was 
held  that  a  statute  of  Michigan  reg- 
ulating the  practice  in  chancery 
courts  was  unconstitutional  in  so 
far  as  it  assumed  to  provide  a  final 
decision  of  questions  of  fact  in 
chancery  suits  by  the  verdict  of  a 
jury  and  the  rejection  of  testimony 
by  the  presidingljudge  as  in  actions 
at  law.  This  case  was  followed  and 
approved  in  Detroit  National  Bank 
V.  Blodgett,  115  Mich.  160   (1897). 

16.  Alabama.  Anonymous,  35 
Ala.  226  (1859). 

Delaware.  Sparks  v.  Farmers' 
Bank,  :;  Del.  Ch.  225   (186S). 

Florida.  Smith  v.  Croom,  7  Fla. 
180  (1857). 

Illinois.  J.  &  A.  1  920;  1  Starr  & 
Curtis  Ann.  Stat.  588;  Keith  v. 
Henckleman,  173  111.  137   (1898). 

Maine.  R.  S.,  Chap.  79,  Sec.  33; 
Farnsworth  v.  Whiting,  106  Me.  430 
(1910). 

Maryland.  Baker  v.  Safe  Deposit, 
etc.  Co.,  93  Md.  .368  (1901). 


ISSUES  TO  JURIES 


617 


§  378.  Where  issues  may  be  properly  ordered.  The  fol- 
lowing are  the  principal  cases  wherein  a  trial  by  jury  is 
appropriate:  wherever  the  evidence  is  so  contradictory, 
or  so  nearly  balanced,  that  an  open  and  rigid  cross-exami- 
nation of  the  witnesses  before  a  jury  is  necessary  for  the 
ascertainment  of  the  truth;  ^'^  where  the  genuineness  of  a 


Massachusetts.  Eq.  Eule  36; 
Parker  v.  Simpson,  180  Mass.  334 
(1902). 

Michigan.  How.  Ann.  St.  (2nd 
ed.)  Sec.  11979,  Comp.  L.  462;  De- 
troit National  Bank  v.  Blodgett, 
115  Mich.  160  (1897).  The  case 
here  cited  held  that  an  act  making 
the  verdict  of  a  jury  final  on  ques- 
tions of  fact  was  invalid. 

Mississippi.  Carradine  v.  Carra- 
dine,  58  Miss.  286,  38  Am.  Rep.  324 
(1880). 

New  Hampshire.  Genest  v.  Odell 
Mfg.  Co.,  75  N.  H.  365  (1909). 

New  Jersey.  Carpenter  v.  Eas- 
ton,  etc.,  R.  Co.,  26  N.  J.  Eq.  168 
(1875);  Trenton  Banking  Co.  v. 
Woodruff,  2  N.  J.  Eq.  117  (1838). 

Pennsylvania.  Eq.  Rule  72;  Hess 
V.  Calendar,  120  Pa.  St.  138  (1888); 
Frank's  App.,  59  Pa.  St.  190  (1868). 

Virginia.  Code  1904,  Sec.  3381; 
Stevens  v.  Duckett,  107  Va.  17 
(1907). 

West  Virginia.  Code  1906,  Sec. 
3530. 

United  States.  Garsed  v.  Beall, 
94  U.  S.  684,  23  L.  ed.  686  (1875); 
Pacific  Coal,  etc.,  Co.  v.  Pioneer, 
etc.,  Co.,  205  Fed.  577  (1913). 

In  Virginia,  it  must  be  shown  by 
affidavits  after  reasonable  notice 
that  the  case  will  be  rendered 
doubtful  by  the  conflicting  evidence 
of  the  opposing  party.  Stevens  v. 
Duckett,  107  Va.  17  (1907). 

The  court  may  submit  issues  to 
the  jury  on  its  own  motion.     Black 


V.  Lamb,  12  N.  J.  Eq.  108  (1858); 
London  v.  London,  1  Hump.  (Tenn.) 
1  (1830);  Meek  v.  Spracher,  87  Va. 
162  (1890). 

It  is  held  that  the  discretion  must 
be  a  sound  judicial  discretion  and 
not  arbitrarj^,  and  that  it  is  review- 
able upon  appeal.  Iron  Co.  v.  Iron 
Co.,  107  Mass.  290  (1871);  Miller  v. 
Wills,  95  Va.  337  (1897).  But  see, 
contra,  Philips  v.  Edsall,  127  111.  535 
(1889);  Black  v.  Shreve,  13  N.  J. 
Eq.  455,  467  (1860).  Except  pos- 
sibly where  there  has  been  a  palp- 
able abuse  of  such  discretion.  New- 
ark, etc.,  R.  Co.  V.  Mayor,  etc.,  23 
N.  J.  Eq.  515,  524. 

It  seems  that  an  appellate  court 
could  at  its  own  discretion  remand 
a  case  to  the  court  below  for  a  jury 
trial  where  it  was  deemed  neces- 
sary for  the  proper  decision  of  the 
case  and  the  court  below  had  re- 
fused to  submit  it.  See  Cochrane  v. 
Deener,  94  IJ.  S.  784,  24  L.  ed.  140 
(1876). 

17.  Russell  V.  Paine,  45  111.  350 
(1867);  Wendell  v.  Highstone,  52 
Mich.  552  (1884);  Bassett  v.  John- 
son, 3  N.  J.  Eq.  417  (1836);  Fisler 
V.  Porch,  10  N.  J.  Eq.  256  (1854); 
Townsend  v.  Graves,  3  Paige  (N. 
Y.)  453  (1832);  Hess  v.  Calender, 
120  Pa.  138  (1888);  Carter  v.  Car- 
ter, 82  Va.  624,  638  (1886);  Sands 
V.  Beardsley,  32  W.  Va.  594  (1889). 

The  court  is  not  bound  to  submit 
issues  when  evidence  is  conflicting. 
Robinson     v.     Allen,     85    Va.     721 


618 


EQUITT  PRACTrCE 


deed,  will,  note  of  hand,  bill  of  sale  or  other  written  instru- 
ment is  in  issue;  ^^  where  questions  of  sanity,  duress, 
fraud,  usury  and  failure  of  consideration  are  involved;  ^^ 
where  the  title  to  land  is  disputed  in  an  injunction  suit 
to  protect  possession;  -"  where  the  question  in  issue  is  the 
dividing-  line  between  two  tracts  or  lots  of  land;-^  where 
unliquidated  damages  are  to  be  assessed;  ^-  where  a  deed 
or  bill  of  sale  is  alleged  to  have  been  given  as  a  mere 
mortgage;  -•'  and  where  the  fact  of  marriage  or  the  legiti- 
macy' of  children  is  in  issue.-^  On  the  other  hand  where 
there  is  a  mixed  question  of  law  and  fact  or  where  the 
issues  are  numerous,  difficult  and  complicated,  or  the  evi- 
dence is  not  conflicting,  or  a  pure  question  of  law  is 
involved,  or  where  the  amount  in  controversy  is  small 
and  the  facts  can  be  satisfactorily  ascertained  by  the 
court,  an  issue  will  not  be  awarded.^^ 


(1889).  Anil  a  fortiori  should  not 
when  evidence  is  not  conflicting. 
Carlisle  v.  Cooper,  18  N.  J.  Eq.  241 
(1867);  De  Vaughan  v.  Hustead,  27 
W.  Va.  773  (1880). 

It  is  sometimes  stated  that  an 
issue  should  not  be  directed  until 
the  plaintiff  has  thrown  the  burden 
of  proof  upon  the  defendant.  Sands 
V.  Beardsley,  32  W.  Va.  594  (1889). 

18.  Pomeroy  v.  Winship,  12  Mass. 
514  (1815);  Cotton  v.  Eoss,  2  Paige 
(N.  Y.)   396   (1831). 

19.  Banks  v.  Booth,  6  Munf. 
(Va.)  385  (1819). 

20.  Lumber  Co.  v.  James,  50  Fed. 
360  (1892). 

21.  Gibson's  Suits  in  Chancery, 
Sec.  533;  2  Dan.  Ch.  Pr.,  (6th  Am. 
ed.)  1072  note  5  for  this  point  and 
the  subject  of  this  whole  section. 

22.  Moore  v.  ]\Iartin,  1  B.  Mon. 
Ky.  97   (1840). 

23.  Knibb  v.  Dixon,  1  Eand. 
(Va.)   249   (1822). 


24.  A^aigneur  v.  Kirk,  2  Desaus 
(S.  C.)  640  (1808). 

25.  In  the  following  cases  issues 
were  not  directed: 

Delaware.  Sparks  v.  Farmers ' 
Bank,  3  Del.  Ch.  225  (1868)  (mixed 
question  of  law  and  fact). 

Massachusetts.  Parker  v.  Simp- 
son, 180  Mass.  334  (1901)  (issues 
numerous,  difficult  and  compli- 
cated). 

Mississippi.  Carradine  v.  Carra- 
dine,  58  Miss.  286,  38  Am.  Rep.  324 
(1880)  (evidence  not  conflicting). 

New  Jersey.  Carlisle  v.  Cooper, 
18  N.  J.  Eq.  241  (1867)  (clear 
proof) ;  Garwood  v.  Admr.  of  Eld- 
ridge,  2  X.  J.  Eq.  290  (1840)  (small 
amount  involved). 

Pennsylvania.  Landis  v.  Lyon, 
71  Pa.  St.  473  (1872)  (question  of 
law). 

Virginia.  Cornell  v.  Forbes,  114 
Va.  587  (1913)  (weight  of  evidence 
against  the  plaintiff) ;  Jones  v. 
Christian,  86  Va.  1017  (1890)   (evi- 


ISSUES  TO  JURIES 


619 


§  379.  When  issues  should  be  applied  for.  This  is 
largely  regulated  by  the  statutes  and  rules  of  the  various 
jurisdictions.^*^ 

§  380.  Framings  issues.  Originally  the  form  of  an  issue 
was  that  of  a  wager  assumed  to  have  been  made  regarding 
the  matter  in  dispute  ^^  and  hence  the  term  ' '  feigned 
issues"  sometimes  employed  to  describe  them.  This  fic- 
tion is  now  dispensed  with  and  the  approved  practice  is 
to  submit  the  questions  to  the  jury  in  the  form  of  direct 
interrogatories.-^  The  form  of  the  issue  may  be  agreed 
upon  by  counsel  and  approved  by  the  court,  or  it  may  be 
prepared  by  the  court.- ^    If  the  parties  differ  as  to  the 


dence  fails  as  to  a  matter  essential 
to  the  plaintiff's  equity). 

26.  Maine.  Equity  Eule  11  (de- 
fendant at  close  of  answer,  plaintiff 
at  end  of  replication). 

Massachusetts.  Rule  36  (10  days 
after  parties  are  at  issue). 

Pennsylvania.  Rule  72  (after 
ease  at  issue,  rule  to  show  cause  on 
five  days'  notice). 

Tennessee,  Cheatham  v.  Pearce, 
89  Tenn.  668  (1890)  (by  motion  in 
open  court  within  first  three  days  of 
the  term). 

Virginia.  Code,  Sec.  .3381  (on 
showing  by  affidavit  after  reason- 
able notice  that  the  cause  will  be 
rendered  doubtful  by  the  conflict- 
ing evidence  of  the  opposing  party). 

West  Virginia.  Code  1906,  Sec. 
3530  (discretionary  with  court  at 
any  time). 

Issues  should  not  as  a  rule  be  di- 
rected after  the  case  has  been  sub- 
mitted to  a  master.  Phillips  v.  Ed- 
sall,  127  111.  535,  548  (1889);  At- 
lanta Mills  v.  Mason,  120  Mass.  244 
(1876);  Richmond  Cedar  Works  v. 
Pinnix,  208  Fed.  785  (1913).  Or 
where  the  motion  is  not  made  until 
the  parties  and  witnesses  are  in  at- 


tendance ready  for  a  hearing  be- 
fore the  chancellor.  Belleville  v. 
Citizens'  Horse  R.  Co.,  152  111.  171, 
26  L.  R.  A.  681  (1894).  On  the 
other  hand  a  motion  for  issues  is 
premature  if  made  before  the  plead- 
ings are  closed  so  as  to  enable  the 
court  to  see  what  facts  are  contro- 
verted. Tibbetts  v.  Perkins,  20  N. 
H.  275  (1850). 

27.  Black.  Comm.  452;  American 
Dock,  etc.,  Co.  v.  Public  Schools,  37 
N.  J.  Eq.  266  (1887);  Nashville  Ry. 
&  Light  Co.  V.  Bunn,  168  Fed.  862 
(1909). 

28.  Dorr  v.  Tremont  Nat.  Bank, 
128  Mass.  357  (1880)  and  cases 
cited. 

29.  In  either  case,  it  is  the  pro- 
vince of  the  court  to  determine 
what  facts  are  to  be  submitted,  and 
neither  party  has  the  right  to  dic- 
tate the  terms  of  any  particular 
question.  See  Barth  v.  Rosenfeld, 
36  Md.  604  (1872) ;  Black  v.  Shreve, 
13  N.  J.  Eq.  455  (1860);  Ringwalt 
V.  Ahl,  36  Pa.  St.  336  (1860). 

Under  Miss.  Code,  Sec.  558,  the 
court  causes  the  issues  to  be  made 
up  in  writing. 

See  Alabama  Code,  Sec.  3202. 


620 


EQUITY  PRACTICE 


form  of  the  issue,  it  is  usually  settled  by  a  master  ^^  or  by 
the  court  itself.  A  party  who  has  agreed  to  the  issues 
cannot  afterwards  object  either  to  their  forai  or  sub- 
stance,^^ and  after  verdict  it  is  too  late  to  object  to  the 
form  of  the  issue.^^  The  issue  should  be  made  up  from 
the  pleadings  in  the  cause  and  cannot  be  broader  than  the 
issues  therein  raised.^^  The  court  may  submit  to  the  juiy 
one  or  more  issues  at  the  same  time,  involving  all  or  any 
part  of  the  facts  involved  in  the  cause.^^  The  issue  may 
be  amended  or  reformed  when  the  court  considers  it 
necessary.^^ 

§  381.  Order  of  court  directing  issues.     The  order  of 
court  directing  an  issue  should  state  the  issue  to  be  pre- 


Under  Tenn.  Code,  Sec.  6285,  the 
issues  are  made  up  by  the  parties 
under  the  direction  of  the  court, 
and  the  party  must  submit  proper 
issues.  Burton  v.  Farmer's  Bldg., 
etc.,  Assoc,  104  Tenn.  414  (1900). 

30.  Hoffman's  Ch.  Pr.  (2d  ed.) 
505;  Withee  v.  Kowe,  43  Me.  571, 
584  (1858). 

31.  Hoobler  v.  Hoobler,  128  111. 
645  (1889). 

32.  Black  v.  Lamb,  12  X.  J.  Eq. 
109  (1858);  or  after  appeal.  Barth 
V.  Eosenfeld,  36  Md.  605  (1872). 

Objections  should  be  made  in  the 
court  from  which  the  issues  are 
sent.  Bell  v.  Woodward,  47  N.  H. 
539  (1867). 

Where  both  parties  proceed  to 
take  testimony  without  applying 
for  a  jury  trial,  it  is  the  privilege 
of  the  court  to  decide  the  case  itself 
on  the  evidence.  Brown  v.  Minor, 
128  111.  148  (1889);  Denton  v.  Led- 
dell,  23  N.  J.  Eq.  64  (1872);  Powell 
V.  Batson,  4  W.  Va.  610  (1871). 

33.  Morgan  v.  Fuller,  L.  E.  2  Eq. 
296;  Dunn  v.  Dunn,  11  Mich.  284 
(1863).     . 

34.  Bailey    v.    Sewall,     1    Euss. 


(Eng.)  239;  Pankey  v.  Eaum,  51 
111.  88  (1869).  It  is  said  that  the 
practice  for  the  most  part  is 
against  submitting  the  whole  issue 
or  case  to  a  jury.  Milk  v.  Moore, 
39  111.  584  (1864).  But  it  is  held 
that  where  there  is  more  than  one 
issue  the  court  will  not  accept  a 
verdict  as  to  one  without  the  other. 
Berry  v.  Wallen,  1  Overt.  (Tenn.) 
186  (1805). 

The  court  should  condense  issues 
so  as  to  present  some  proposition 
which  the  jury  can  either  affirm  or 
deny  without  finding  all  the  other 
facts  necessary  for  a  conclusion. 
Barth  v.  Eosenfield,  36  Md.  604 
(1872);  Christman  v.  McMurray, 
107  Tenn.  469  (1901). 

The  issues  if  there  be  more  than 
one  should  be  distinct  and  explicit, 
presenting  in  each  a  single  question, 
so  clearly  that  it  could  not  but  be 
understood  by  the  jurj',  and  their 
verdict  should  be  responsive  to 
each.  Milk  v.  Moore,  39  111.  584 
(1864). 

35.  St.  .Tohns  v.  Wates,  24  Abb. 
N.  Gas.  (N.  Y.)  158  (1890). 


ISSUES  TO  JURIES  621 

sented  and  fix  the  time  for  the  trial.  This  should  be  at 
the  term  of  the  court  then  sitting  at  nisi  prius  with  a  jury 
in  that  county  if  there  be  one,  or  at  the  next  term  fol- 
lowing. The  plaintiff  in  the  cause  is  usually  the  plaintiff 
in  the  issue,  but  the  court  may  order  the  party  supporting 
the  affirmative  of  the  question  to  be  the  plaintiff  in  the 
issue  if  it  can  thus  be  more  conveniently  raised.^^  The 
court  may  also  order  the  parties  to  make  such  admissions 
as  are  necessary  to  raise  the  question  to  be  determined, 
and  to  produce  at  the  trial  all  documents  in  their  posses- 
sion or  control  which  may  be  necessary.'^'''  If  the  plaintiff 
in  the  issue  defaults  in  appearing  for  trial  at  the  time 
appointed,  the  issue  may  on  motion  of  defendant  be 
ordered  taken  pro  confesso  against  him,  or  the  issue  may 
be  continued  to  another  term  for  trial  on  terms  of  payment 
by  plaintiff  of  costs  occasioned  by  default."'^  When  the 
framing  of  an  issue  is  discretionary,  the  court  may  with- 
draw an  issue  which  has  been  sent  to  a  jury,  or  annul  and 
set  aside  the  order  directing  the  issue  and  determine  the 
whole  case  itself.^"  The  trial  of  an  issue  is  begun  by  the 
plaintiff  in  the  issue  who  reads  to  the  court  and  jury  the 
order  from  the  court  of  equity  directing  the  issue.  It  is 
not  necessary  for  the  court  or  jury  to  know  anything  of 
the  equitable  proceedings  or  pleadings  in  the  main  cause."*  ^ 
§  382.  Trial  of  an  issue.    The  proceedings  on  the  trial 

36.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p.  Apthorp  v.  Comstoek,  2  Paige  (N, 
1111;  Chapman  V.  Smith,  2  Ves.  Sr.  Y.)  482  (1831);  Kingwalt  v.  Ahl, 
506,  516.  36  Pa.  St.  336   (1860). 

In  Dorr  v.   Tremont  Nat.  Bank,  39.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p. 

128  Mass.  357  (1880),  it  was  held  to  1115;    Johnston    v.    Todd,   3   Beav. 

be  correct  practice  for  the  plaintiff  218;  Hargrave  v.  Hargrave,  8  Beav. 

to  support  the  affirmative.  289. 

37.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p.  40.  Cook  v.  Bay,  4  How.  (Miss.) 
1113.  The  court  may  impose  any  485  (1890);  Pitman  v.  Lamb,  53 
other  restriction  which  will  prevent  Miss.  594  (1876). 

fraud  and  surprise  at  the  trial.   See  41.  Black  v.  Lamb,  12  N.  J.  Eq. 

directions  in  Clark  V.  Cong.  Society,  123   (1858),  and  see  Cook  v.  Cook, 

44    N.    H.    382     (1862);    Black    v.  29  Md.  538  (1868). 
Shreve,  13  N.  J.  Eq.  455,  485  (1860) ; 


622 


EQUITY  PRACTICE 


of  an  issue  are  generally  the  same  as  those  adopted  in 
ordinary  trials  at  law  except  when  the  court  of  chancery 
has  given  special  directions  upon  the  subject.^^  All  kinds 
of  legal  evidence  may  be  introduced  in  the  same  way  as 
at  law  and  subject  to  the  rules  of  law  regulating  admis- 
sibility of  evidence.^^  It  is  the  duty  of  the  presiding  jus- 
tice to  pass  upon  the  admissibility  of  all  evidence  offered  "'^ 
only  excluding  such  evidence  as  is  clearly  inadmissible. 

When  an  issue  is  directed  to  satisfy  the  conscience  of 
the  court  and  the  justice  presiding  at  the  trial  is  the  same 
one  before  whom  the  equity  case  is  being  heard,  he  may 
at  any  time  direct  a  verdict  in  favor  of  either  party.^^    The 


42.  Dan.  Ch.  Pr.  (6th  Am.  ed.)  p. 
1115;  Alabama  Code,  See.  3202; 
Black  V.  Lamb,  12  X.  J.  Eq.  123 
(1858). 

43.  Farmer  v.  Pitcher,  151  Mass. 
470  (1890);  Worthington  v.  Major, 
94  Mich.  325  (1892);  and  see  Black 
V.  Lamb,  12  N.  J.  Eq.  113   (1858). 

Where  the  motion  for  a  jury  trial 
is  not  made  until  after  the  evidence 
for  the  hearing  in  chancery  has 
been  taken,  it  should  be  tried  upon 
the  same  evidence  on  which  it 
would  have  been  tried  in  chancery, 
unless  the  court,  upon  cause  shown, 
makes  an  order  permitting  the  in- 
troduction of  further  evidence. 
Marsten  v.  Brackett,  9  X.  H.  336 
(1838). 

44.  Pond  V.  Pond,  10  Cal.  495,  501 
(1858). 

45.  De  Graff  v.  Manz,  251  111.  531 
(1911) ;  Sparks  v.  Ross,  72  X.  J.  762 
(1907);  see  also  Beck  v.  Beck,  163 
Pa.  649  (1894);  contra,  McKinley 
V.  Lamb,  64  Barb.  199  (1872),  and 
Woolfolk  V.  Graniteville  Mfg.  Co., 
23  S.  C.  332  (1884),  holding  that 
the  justice  presiding  at  the  trial 
cannot  grant  a  nonsuit. 

In  De  Graff  v.  Manz,  supra,  the 


court  says,  ' '  the  verdict  of  the  jury 
is  merely  for  the  purpose  of  satisfy- 
ing the  conscience  of  the  chancellor, 
and  if,  after  the  trial  is  entered 
upon  before  the  jury,  the  evidence 
develops  a  state  of  facts  upon  which 
the  chancellor  is  satisfied  to  rest  a 
final  decree  without  reference  to 
any  verdict  that  the  jury  might  ren- 
der, the  court  may  discharge  the 
jury  without  a  verdict,  or  as  was 
done  in  this  case,  direct  a  verdict  in 
accordance  with  the  court 's  views, 
and  render  a  decree  accordingly." 

In  Sparks  v.  Eoss,  supra,  it  was 
held  that  the  presiding  judge  could 
direct  a  verdict  where  the  evidence 
justified  the  instruction,  but  that 
the  evidence  must  be  such  that  a 
verdict  contrary  to  the  instruction 
could  not  stand. 

In  Beck  v.  Beck,  supra,  it  was 
held  that  a  refusal  to  direct  a  ver- 
dict for  the  defendant  was  not 
error  where  the  circumstances  were 
sufficient  to  justify  the  granting  of 
an  issue. 

In  general  it  may  be  said  that  the 
trial  judge  must  not  in  any  way 
go  contrary  to  the  order  of  the 
court    from    which    the   issues    are 


ISSUES  TO  JURIES 


623 


plaintiff  in  the  issue  is  entitled  to  the  opening  and  the 
close.^"  When  the  verdict  has  been  foiTnd  and  returned 
by  the  jury,  it  is  filed  with  the  pleadings  and  recorded 
with  the  docket  entries  in  the  case  on  the  equity  docket. 
At  the  request  of  either  party  this  may  be  accompanied 
by  a  stenographer's  report  of  all  the  evidence  in  the  case, 
noting  the  objections  raised  and  the  rulings  thereon 
together  with  the  judge 's  cliarge,^'^  certified  b}^  the  stenog- 


sent.  Bell  v.  Woodward,  47  N.  H. 
539  (1867).  After  receiviag  the 
findings  of  the  jury  and  making  his 
report  on  the  trial  his  functions 
cease.  Pond  v.  Pond,  10  Cal.  495 
(1858). 

46.  Dorr  v.  Nat.  Bank,  128  Mass. 
349,  358  (1880). 

47.  Bassett  v.  Johnson,  2  N.  J.  Eq. 
154  (1838);  Watkins  v.  Carleton, 
10  Leigh  (Va.)  586  (1840).  It  was 
customary  in  the  English  chancery 
practice  on  a  motion  for  a  new 
trial  to  send  for  the  notes  of  the 
judge  who  presided  at  the  trial  of 
the  issue  where  the  courts  of  law 
and  equity  were  presided  over  by 
different  judges.  Watt  v.  Starke, 
101  U.  S.  248  (1879) ;  Clyde  v.  Eicli- 
mond  Co.,  72  Fed.  121  (1896). 

The  application  for  the  judge's 
notes  was  ex  parte  and  only  granted 
on  showing  that  there  was  reason- 
able ground  for  questioning  the  ver- 
dict.   Anony.,  6  Madd.  58  (1821). 

Affidavits  of  facts  not  in  the 
judge  's  notes  might  be  allowed  and 
the  facts  proved  in  this  manner. 
Shields  v.  Boucher,  1  DeG.  &  Sm.  40 
(1847). 

There  seems  to  be  some  uncer- 
tainty among  the  authorities  as  to 
the  duty  of  the  court  in  charging 
or  instructing  the  jury  on  the  trial 
of  an  issue  in  equity.  The  con- 
clusion   from    authorities    in    Code 


states  under  similar  procedure 
seems  to  be  that  since  the  issue  is 
one  of  pure  fact,  there  is  no  occa- 
sion for  the  court  to  give  instruc- 
tions on  the  law  applicable  to  the 
facts  since  this  is  the  province  of 
the  justice  or  chancellor  who  or- 
dered the  issue.  Domingues  v.  Do- 
mingues,  7  Cal.  424  (1857);  Swales 
V.  Grubbs,  126  Ind.  107  (1890); 
Farmers'  Bank  v.  Butterfield,  JOO 
Ind.  230  (1884).  But  see  Van  Vleet 
V.  Olin,  4  Nev.  95  (1868).  In  any 
case  the  court  is  not  bound  to  give 
instructions  to  the  jury  except  as 
to  the  admission  or  exclusion  of 
evidence  (Pond  v.  Pond,  10  Cal. 
495  (1858)),  and  neither  can  de- 
mand this  of  the  court  as  a  matter 
of  right  (Danielson  v.  Gude,  11 
Colo.  87  (1887);  Luce  v.  Barnum, 
19  Mo.  App.  359,  301  (1885)),  and 
the  refusal  to  give  them  is  not  a 
cause  for  reversal.  Branger  v. 
Chevalier,  9  Cal.  353  (1858);  Cou- 
ran  v.  Sellew,  28  Mo.  320  (1859). 
In  Massachusetts  the  court  cannot 
charge  the  jury  upon  the  facts. 
See  Cobb  &  Co.  v.  M.  B.  Assoc,  153 
Mass.  176  (1891).  The  correct  rule 
would  seem  to  be  that  it  is  proper 
for  the  justice  presiding  at  the 
trial  of  an  issue  in  equity  in  his 
discretion  to  instruct  the  jury 
whenever  it  seems  to  him  necessary 
in  order  to  enable  them  to  deter- 
mine properly  and  intelligently  the 


624 


EQUITY  PRACTICE 


raplier  and  approved  by  the  presiding  justice.^'*  The  case 
must  then  be  set  for  final  hearing  in  the  usual  \Yay,  when 
the  verdict  and  record  will  be  taken  up  and  examined  by 
the  chancellor  or  single  justice  presiding  in  the  equity 
cause  and  a  decree  made  pursuant  to  the  verdict,  or  the 
verdict  may  be  disregarded  as  shown  in  the  following 
section. 


questions  of  fact  submitted  to 
them. 

In  the  Circuit  Court  of  Baltimore 
City,  by  statute,  the  court  may  in- 
struct the  jury.  Barth  v.  Kosen- 
feld,  36  Md.  604  (1872). 

Direct,  definite  answers  should 
be  given  to  all  requests  for  find- 
ings. New  Cumberland  Borough  v. 
Eiverton  Consolidated  Water  Co., 
232  Pa.  531  (1911). 

In  Illinois  the  Act  (3  Starr  & 
Cur.  Stat.,  p.  3167)  providing  that 
in  all  trials  by  juries  in  civil  pro- 
ceedings in  courts  of  record  the 
jury  may  render,  in  their  discre- 
tion, a  general  or  special  verdict, 
does  not  apply  to  suits  in  equity  in 
which  an  issue  of  fact  is  made  and 
submitted  to  a  jury  for  a  verdict 
which,  when  rendered,  is  but  ad- 
visory to  the  court.  Bird  v.  Bird, 
218  111.  158  (1905).  Conversely,  it 
is  held  to  apply  where  by  statute 
issues  to  juries  in  chancery  cases 
have  the  force  and  effect  of  the 
verdict  of  a  jury  in  an  action  at 
law.     Ibid. 

In  Von  Glahn  v.  Von  Glahn,  46 
111.  134  (1867),  it  was  held  that  it 
would  tend  to  promote  justice,  and 
greatly  aid  the  court  in  its  decree, 
if  the  jury  were  instructed  to  find 
upon  each  issue  raised  by  the  plead- 
ing and  proof. 

48.  Trenton  Bank  v.  Eussell,  2  N. 
J.  Eq.  492  (1841);  Saylor's  App.,  39 
Pa.  St.  495    (1861)    (not  necessary 


to  transmit  evidence  where  issue 
tried  before  chancellor);  Law  v. 
Miller,  24  R.  I.  14  (1902). 

It  is  proper  also  in  general  chan- 
cery practice  for  the  justice  pre- 
siding at  the  trial  of  the  issue  to 
certify  whether  or  not  he  is  satis- 
fied with  the  verdict.  Alexander  v. 
Alexander,  5  Ala.  517  (1843);  Dunn 
v.  Dunn,  11  Mich.  284  (1863) ;  Prud- 
den  V.  Lindsley,  31  N.  J.  Eq.  436 
(1879).  This,  of  course,  is  not  nec- 
essary in  states  where  law  and 
equity  are  both  administered  by 
the  same  court  and  the  same  jus- 
tice who  orders  the  issue  framed 
in  the  equity  cause  is  the  one  who 
presides  at  the  trial  of  the  issue  be- 
fore a  jury.  Lavell  v.  Gold,  25 
Gratt.  (Va.)  473  (1874);  Wilson  v. 
Riddle,  123  U.  S.  608  (1887). 

In  Trenton  Bank  v.  Russell,  2  N. 
J.  Eq.  492  (1841),  the  distinction 
was  pointed  out  between  actions  at 
law  directed  by  a  court  of  equity 
and  issues  to  juries,  the  court  say- 
ing, "When  an  action  at  law  is 
directed  by  a  court  of  equity  the 
posiea  (i.  e.,  the  account  of  the  pro- 
ceedings at  the  trial)  must  be  re- 
turned to  the  court  in  which  the 
suit  at  law  is  instituted.  The  cause 
is  there  and  motions  for  new  trial 
and  all  other  proceedings  are  to  be 
had  in  that  court,  but  when  an 
issue  is  directed  by  a  court  of 
equity,  the  posiea  must  be  re- 
turned to  the  court  which  ordered 


ISSUES  TO  JURIES 


625 


§383.  Weight  of  verdict.  The  verdict  of  a  jury  in 
equity,  except  in  those  cases  where  it  is  secured  as  a  con- 
stitutional or  statutory  right,  is  advisory  merely  and  not 
binding  on  the  court.^^  The  findings  of  the  jury  must  be 
such  as  will  satisfy  the  conscience  of  the  court  to  found 
a  decree  upon  or  they  should  be  disregarded.  But  there 
should  be  some  material  and  weighty  reason  why  the 
verdict  does  not  satisfy  the  court.  The  objections  to  it 
should  not  be  arbitrary  or  capricious.^*^  When  however 
the  jury  render  a  clearly  erroneous  and  unjust  verdict,  the 
court  may  not  only  disregard  it,  but  may  in  its  discretion 
make  a  final  decree  in  the  case  adversely  to  the  verdict.^^ 
The  verdict  cannot  be  set  aside  by  the  justice  presiding 
at  the  trial  as  a  common  law  judge.  It  can  only  be 
reviewed  by  the  justice  presiding  in  the  equity  cause,  or 
in  other  words  by  the  chancellor.^  ^ 


tlie  issue  and  all  the  subsequent 
proceedings  are  in  that  court." 

49.  Illinois.  Eiehl  v.  Riehl,  247 
111.  475  (1910);  Pittenger  v.  Pitten- 
ger,  208  111.  582  (1904). 

Maine.  Farnsworth  v.  Whiting, 
106  Me.  430  (1910). 

Michigan.  Railroad  Co.  v.  Smith, 
144  Mich.  235  (1906).  See  Brown 
V.  Kalamazoo  Circuit  Judge,  75 
Mich.  274,  13  Am.  St.  Rep.  438,  5  L. 
R.  A.  226  (1889). 

Mississippi.  Pitman  v.  Lamb,  53 
Miss.  594  (1876). 

Pennsylvania.  Evans  v.  Quin- 
lan,  87  Atl.  858  (Pa.  1913);  Wilson 
V.  Wilson,  142  Pa.  St.  572  (1891); 
Eq.  Rule  72. 

Rhode  Island.  Law  v.  Miller,  24 
R.  I.  14  (1902). 

Tennessee.  Lowe  v.  Trainer,  6 
Coldw.  (Tenn.)  633  (1869). 

Virginia.  Carter  v.  Jeffries,  110 
Va.  735   (1910). 

United  States.  Kohn  v.  McNulta, 
147  U.  S.  238,  37  L.  ed.  150  (1893). 

In  Massachusetts,  a  verdict  which 
Whitehouse  E.  P.  Vol.  I — 40 


is  not  set  aside  is  regarded  as  set- 
tling the  facts  put  in  issue.  Crock- 
er V.  Crocker,  188  Mass.  16  (1905). 
But  the  verdict  is  conclusive  only 
on  the  issues  passed  on  and  does 
not  preclude  the  court  from  consid- 
ering other  material  testimony. 
Dudley  v.  Dudley,  176  Mass.  34 
(1899). 

50.  Metcalf  v,  Metcalf,  85  Me. 
473  (1893).  See  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  p.  112L 

In  Nease  v.  Capehart,  15  W.  Va. 
299  (1879),  it  was  held  that  the 
conscience  of  the  court  must  be  sat- 
isfied with  the  verdict  of  the  jury 
upon  an  issue  properly  directed, 
where  no  errors  have  been  commit- 
ted during  the  trial  thereof  either 
by  the  court  or  jury  to  the  preju- 
dice of  either  party. 

51.  De  Graff  v.  Many,  251  111. 
531  (1911) ;  Maine  Benefit  Assn.  v. 
Parks,  81  Me.  79  (1888);  Maine, 
R.  S.,  Chap.  79,  Sec.  33. 

52.  Barnett  v.  Montgomery,  etc., 
R.  Co.,  51  Ala.  555  (1874);  Riehl  v. 


626  EQUITY  PHACTICE 

On  the  other  hand  where  a  trial  by  jury  in  equity  is 
the  constitutional  or  statutory  right  of  the  parties,  the 
verdict  cannot  be  set  aside  except  for  causes  which  would 
justify  setting  aside  a  verdict  at  common  law,  and  in  such 
case  where  the  verdict  is  set  aside,  the  court  should  not 
be  allowed  to  make  a  decree  adversely  to  the  verdict  but 
a  new  trial  should  be  ordered."'^ 

§  384.  Exceptions.  In  the  practice  of  most  courts  of 
cliancery,  since  the  verdict  of  a  jury  is  in  general  merely 
advisory  and  not  conclusive  upon  the  chancellor,  a  bill 
of  exceptions  is  unknown.  The  rulings  of  a  justice  presid- 
ing at  the  trial  of  an  issue  framed  for  a  jury  in  equity  can 
be  revised  only  upon  motion  for  a  new  trial  in  the  court 
which  ordered  the  issue.^^  In  the  Federal  courts,  it  is  held 
that  "exceptions  to  rulings  are  proper  to  be  taken  and 
noted;  for  upon  a  view  of  the  whole  case,  the  mind  of 
the  chancellor  may  be  affected  by  them ;  just  as  it  is  proper 
to  take  and  note  exceptions  to  evidence  taken  by  deposi- 
tion, but  a  bill  of  exceptions  as  such  has  no  proper  place 
in  the  proceedings."  ^^  In  some  states  it  is  provided  by 
statute  ^"^  that  exceptions  may  be  taken  and  noted  to  the 

Eieh],  247  111.  475  (1910);  Larrabee  T^SLrth    v.    Eosenfield,    36    Md.    604 

V.  Grant,  70  Me.  79   (1879);  Dunn  (1872).     Contra,  Dodge  v.  Grisnold, 

V.  Dunn,  11  Mich.  284  (1863);  Watt  12    N.    H.    573    (1840);    Fitzhugh's 

V.  Starke,  101  U.  S.  247,  25  L.  ed.  Ex'rs  v.  Fitzhugh,  11  Gratt.  (Va.) 

826  (1879).  210  (1854);  Henry  v.  Davis,  13  W. 

Where  a  verdict  on  the  law  side  Va.   230    (1878). 

is  set  aside  by  the  law  judge  and  Where  a  trial  by  a  jury  is  a  mat- 

a  new  trial  ordered  and  the  second  ter    of    right,    however,    the    same 

verdict   is    certified    to    the    equity  practice  applies  as  in  an  action  at 

side,  the  action  of  the  chancellor  in  law,    and    a    bill    of    exceptions    is 

entering  a  decree  on  the  second  ver-  proper.    State  v.  Hawkins,  7  Pickle 

diet  amounts  to  an   affirmation  of  (Tenn.)  140,  144  (1891). 

the  proceedings  on  the  law  side  of  See    generally    as    to    exceptions 

the    court.    Kerr    v.    South    Park  Chapter  XXVIII,  iiost,  p.  830. 

Com'rs,  117  U.  S.  379,  29  L.  ed.  924  55.  Watt  v.  Starke,  101  U.  S.  247 

(1886).  (1879);  Johnson  v.  Harmon,  94  U. 

53.  See  Sec.  385,  post,  p.  628.  S.   371    (1876). 

54.  Barnett  v.  Montgomery,  etc.,  56.  Maine,  E.  S.,  Chap.  79,  Sec. 
E.  Co.,  51  Ala.  555  (1874);  Peabody  33,  and  see  Maine,  E.  S.,  Chap.  79, 
V.    Kendall,    145    111.    519    (1892);  Sees.  22  and  27;  Dorr  v.  National 


ISSUES  TO  JURIES  627 

rulings  of  tlie  justice  presiding  at  tlie  trial  of  the  issue. 
It  seems  that  a  regular  bill  of  exceptions  may  be  made 
up  thereon  as  in  the  trial  of  an  action  at  common  law.  As 
a  matter  of  actual  practice,  however,  exceptions  on  the 
trial  of  an  issue  in  equity  together  with  the  verdict  and 
the  evidence  must  in  the  first  instance  pass  under  the 
inspection  of  the  chancellor  or  single  justice  presiding  in 
the  equity  cause,^'  since  there  must  be  a  final  decree  ren- 
dered in  the  equity  cause  before  it  can  be  presented  to  the 
appellate  court  on  exceptions  or  appeal  ^^  and  such  final 
decree  cannot  be  rendered  by  the  justice  presiding  at  the 
common  law  trial  of  the  issue  but  only  by  the  chancellor 
who  ordered  the  issue,  or  in  other  words  the  single  justice 
sitting  in  the  cause  on  the  equity  side  of  the  court,^^  and 
the  improper  admission  or  rejection  of  evidence  thus 
excepted  to  during  the  progress  of  the  trial  at  law  might 
influence  his  decision  as  regards  setting  aside  the  verdict. 
This  is  practically  the  only  advantage  to  be  gained  from 
such  exceptions,  for  although  on  appeal  from  the  decree 
of  the  chancellor  or  single  justice  in  equity  to  the  appellate 
court  accompanied  by  the  report  of  the  evidence,  the 
whole  cause,  including  exceptions,  is  open  to  review  by 
the  full  court;  nevertheless  since  the  verdict  is  merely  to 
assist  the  conscience  of  the  chancellor,  when  he  has  ren- 
dered his  decree  with  the  aid  of  the  verdict,  the  latter  has 
then  served  its  purpose  and  no  longer  concerns  the  upper 
court.  Its  only  duty  is  to  determine  whether  the  decree 
below  shall  be  sustained  upon  consideration  of  all  the 
evidence  reported  and  then  not  to  send  the  cause  back  for 
retrial  before  the  jury  but  to  render  a  final  decision 

Bank,   128   Mass.   349,   354    (1880);  England.     Boorte    v.    Blundell,    19 

Mississippi  Code,  Sec.  558.  Ves.  500. 

57.  Dodge  v.  Griswold,  12  N.  H.  58.  Maine,  E.  S.,  Chap.  79,  Sees. 

573,  12  L.  ed.  675  (1842);  McLaugh-  27  and  24;  Benefit  Assoc,  v.  Hamil- 

lin   V.   Bank,   7   How.   227    (1849);  ton,  80  Me.  99,  100  (1888). 

Brockett  v.  Brockett,  3  How.  691,  59.  Baker     v.     King,     6     Yerg. 

11   L.   ed.   251    (1845).     Such,   too,  (Tenn.)  402   (1834). 
was  substantially  the  procedure  in 


628 


EQUITY  PRACTICE 


therein.  Consequently  if  the  report  of  tlie  evidence  not 
only  contains  all  the  evidence  admitted  but  also  reports 
any  evidence  excluded  or  clearly  shows  its  nature,  as  it 
properly  should,'"'"  exceptions  then  serve  no  useful  pur- 
pose whatever  and  will  not  be  considered  on  appeal,  since 
if  evidence  is  improperly  admitted,  it  will  simply  be  dis- 
regarded by  the  court  and  if  the  evidence  excluded  was 
material,  the  court  may  still  give  it  the  weight  to  which 
it  is  entitled.'^  1 

§  385.  New  trial.  If  the  party  against  whom  the  ver- 
dict is  found  on  an  issue  framed  for  a  jury  is  dissatisfied 
with  the  verdict  and  desires  a  new  trial,  he  should  make 
application  to  the  chancellor  or  single  justice  presiding 
on  the  equity  side  of  the  court  which  awarded  the  issue." - 


60.  Although  it  is  the  duty  of 
the  justice  presiding  at  a  jury  trial 
to  exclude  from  the  consideration 
of  the  jury  such  evidence  as  is 
clearly  inadmissible,  nevertheless 
in  making  up  the  report  of  the  evi- 
dence the  testimony  thus  excluded 
from  the  jury  should  be  taken  out 
and  reported  or  its  nature  clearly 
shown,  so  that  if  it  should  be  held 
material  by  the  upper  court  it  would 
not  be  necessary  to  remand  the 
cause  or  issue  a  commission  to  take 
the  rejected  evidence. 

61.  In  Eedman  v.  Hurley,  89  Me. 
428  (1896),  a  verdict  was  rendered 
below  in  favor  of  the  plaintiff,  and 
was  followed  by  a  decree  thereon 
granting  the  relief  prayed.  Excep- 
tions to  the  admissibility  of  evi- 
dence, and  to  the  rulings  of  the 
presiding  justice  to  the  jury  were 
allowed  below  and  presented  above. 
A  motion  filed  below  to  set  aside 
the  verdict,  as  against  both  law 
and  evidence,  was  also  presented 
above  for  decision.  The  defendant 
also  brought  the  cause  up  on  appeal 


from  the  decree  below.  The  court 
said: 

"The  soundness  of  verdicts  in 
actions  at  law  are  first  determined 
before  judgment.  Not  so  in  equity, 
because  some  decree  should  follow 
the  trial,  either  upon  the  verdict  or 
against  it,  and  therefore  when  a 
cause  in  equity  comes  up  on  appeal, 
it  comes  up  for  final  decision  un- 
less the  court  shall  otherwise 
order, — which  is  rarely  the  case, — 
and  the  regularity  of  procedure 
upon  the  trial  to  the  jury  becomes 
wholly  immaterial.  The  cause  in 
the  appellate  court  is  heard  anew, 
and  the  admission  or  exclusion  of 
evidence  below  is  of  no  conse- 
quence, except  so  far  as  it  shall  be 
considered  competent  for  considera- 
tion on  appeal.  The  motion  and  ex- 
ceptions, therefore,  need  not  be  con- 
sidered here;  for  the  vital  question 
is  whether  there  be  sufficient  legal 
evidence  in  the  cause  to  sustain  the 
decree  below,  which  carries  with  it 
a  presumption  in  its  favor." 

62.  Bootle  V.  Blundell,  19  Ves. 
500;   Barnett  v.  Montgomery,  etc.. 


ISSUES  TO  JURIES 


629 


The  application  should  be  by  motion  in  writing  and 
should  be  made  before  final  decree  ujDon  the  verdict.^^ 
Where  the  ordering  of  the  issue  was  discretionary,  the 
court  may,  as  has  been  stated,  either  set  it  aside  and  ren- 
der a  decree  contrary  thereto  or  it  may  order  a  new 
trial  as  it  sees  fit,^^  but  where  the  issue  is  a  constitutional 
or  statutory  right,  the  verdict  cannot  be  wholly  dis- 
regarded '^^  and  an  adverse  decree  rendered,  but  a  new 
trial  must  be  ordered  where  the  circumstances  are  such 
as  would  require  a  new  trial  at  common  law.*^^    The  rule 


R.  Co.,  51  Ala.  555  (1874);  Fanning 
V.  Russell,  94  111.  388  (1880);  Dunn 
V.  Dunn,  11  Mich.  284  (1863) ;  Watt 
V.  Starke,  101  U.  S.  247,  250  (1879). 

63.  Apthorp  v.  Comstock,  2 
Paige  (N.  Y.)  485  (1831). 

Where  a  jury  trial  is  a  statutory 
right  the  verdict  will  stand  unless 
challenged  by  motion  of  a  new 
trial.  Tucker  v.  Cole,  169  111.  150 
(1879). 

64.  Biggerstaff  v.  Biggerstaff, 
180  111.  407  (1899);  Clyde  v.  Rich- 
mond Co.,  72  Fed.  121  (1896).  In 
Wilson  V.  Wilson,  142  Pa.  St.  572 
(1891),  a  verdict  and  judgment 
thereon  was  set  aside  though  two 
years  had  elapsed  from  the  rendi- 
tion and  entry  thereof. 

Where  the  jury  fails  to  agree,  the 
chancery  court  may  refuse  to  call 
another  jury  and  may  decide  the 
case  on  the  evidence  heard  before 
the  issue  was  framed.  Hardy  v. 
Dyas,  203  111.  211  (1903).  But 
where  the  verdict  is  not  responsive 
to  the  issue,  a  new  trial  will  be 
granted.  Marshall  v.  Marshall,  18 
W.  Va.  395  (1881). 

Where  the  jury  has  decided  some 
of  the  issues  and  disagreed  on  the 
others,  the  cause  may  be  decided  by 
the  chancery  court  on  the  whole 
record,  including  the  report  of  the 


trial  at  law.  Clark  v.  Roberts,  206 
Mass.  235  (1910);  Adams  v.  Soule, 
33  Vt.  538  (1860). 

A  new  trial  may  be  granted  for 
newly  discovered  evidence.  Wil- 
liams v.  Bishop,  15  111.  553  (1854), 
semhle;  Nease  v.  Capehart,  15  W. 
Va.  299  (1879),  semlle.  Or  for  sur- 
prise. Powell  v.  Mayo,  26  N.  J.  Eq. 
120  (1875).  And  where  the  judge 
who  presided  at  the  trial  is  dissat- 
isfied with  the  verdict,  the  chan- 
cery court  usually,  although  not 
necessarily,  grants  a  new  trial. 
Alexander  v.  Alexander,  5  Ala.  517 
(1843). 

65.  Bell  V.  Woodward,  48  N.  H. 
437  (1869)  (constitutional);  State 
V.  Farish,  23  Miss.  483  (1852) 
(statutory  right);  Brady  v.  Realty, 
68  N.  J.  Eq.  55  (1904)  (statutory 
right) ;  Ragsdale  v.  Gossett,  2  Lea 
(Tenn.)  729  (1879)  (statutory 
right). 

66.  Meeker  v.  Meeker,  75  111.  260 
(1874);  Brady  v.  Realty  Co.,  68  N. 
J.  Eq.  55  (1904);  James  v.  Brooks, 
6  Heisk   (Tenn.)   153   (1871). 

In  such  cases  alleged  trial  errors 
may  be  considered  along  with  the 
evidence  in  order  to  determine 
whether  the  erroneous  rulings  (if 
they  appear)  are  such  as  to  destroy 
the    value    of    the    verdict    as    a 


630  EQUITY  PRACTICE 

in  the  latter  case  is  well  established  and  requires  that  the 
verdict  be  clearly  against  the  weight  of  evidence  by  rea- 
son of  some  element  of  fraud,  surprise  or  mistake,  or  else 
that  there  should  be  newly  discovered  evidence.  In 
equity  however,  where  the  ordering  of  an  issue  was  dis- 
cretionary, the  court  may  not  only  grant  a  new  trial  where 
the  verdict  is  plainly  against  evidence,  but  will  also  nicely 
balance  the  evidence  on  both  sides.^^  On  the  other  hand 
the  court  in  equity  will  not  consider  merely  technical 
objections  in  such  case,  although  these  might  have  been 
sufficient  to  cause  a  new  trial  as  a  matter  of  course  in 
an  action  at  law.  Thus  a  new  trial  will  not  be  ordered  in 
equity  for  the  improper  admission  or  rejection  of  e\'idence 
provided  that  upon  an  examination  of  all  the  evidence  the 
verdict  is  satisfactory.^^ 

§  386.  Appeals.  An  appeal  may,  of  course,  be  taken 
from  the  decree  of  the  chancellor  or  a  single  justice  in 
equity,  sustaining  or  setting-  aside  the  verdict  of  a  jury  as 
in  the  case  of  all  other  decrees,  and  express  provision  is 

means  of  satisfying  the  conscience  Flood,  31  Gratt.   (Va.)   323   (1879), 

of  the   chancellor.     McAndrews   v.  where  the  court  refused  to  grant  a 

Camden,  78  N.  J.  Eq.  244  (1910).  new  trial   on   the   affidavit   of   two 

By  statute  in  West  Virginia,  the  jurors  that  the  verdict  was  against 

court    may    grant    new    trials    in  their  judgment. 

equity  cases  as  in  other  cases  tried  68.  Bootle    v.    Blundell,    19    Ves. 

by  jury.     Code  1906,  Sec.  3530.  503;  Carleton  v.  Eockport  Ice  Co., 

See  Sec.  383,  ante,  p.  625.  78  Me.  49   (1885);  Black  v.  Lamb, 

67.  Dan.   Ch.  Pr.    (6th  Am.   ed.),  1-  ^'-  J-  ^q.   108   (1858);   Meek  v. 

jjoj,  Spracker,  87  Va.  162  (1890). 

mv                 1     J!           . .  •            •  1     „  Or     even     misdirection     of     the 
The  grounds  for  setting  aside  a 

,.  ,    .           ,                       1        i  T,  judge.     Trenton  Bank  Co.  v.   Rus- 

verdict  m  such  cases  need  not   be  ,,,,_„ 


the    same    as   for   granting   a   new 
trial  at  law.    Alexander  v.  Alexan- 


sell,  2  N.  J.  Eq.  511   (1841). 

The  court  will  rarely  set  aside  a 

verdict    when    the    judge    certifies 
der,  5  Ala.  517  (1843);  Williams  v.      ^^^^  ^^  j^  ^^^.^^^^^  ^.^^  .^      p^^^. 

Bishop,  15  111.  553  (1854) ;  Black  v.  ^^^^  ^    Lindsley,  31  N.  J.  Eq.  436 

Lamb,    12    N.   J.    Eq.    108    (1858);  (i879).     Although  it  has  power  to 

Meek     v.     Spracher,     87     Va.     162  ^o  so.    Dunn  v.  Dunn,  11  Mich.  284 

(1890).    Contra,  Clark  V.  First  Con-  (1863);     Grigsby     v.     Weaver,     5 

gregational   Society,  45   N.   H.   331  Leigh   (Va.)   197  (1834). 

(1864),  sembJe.    And  see  Steptoe  v. 


ISSUES  TO  JUEIES  631 

generally  made  by  statute  for  appeals  in  such  cases,  such 
appeals  being  conducted  as  all  other  appeals  in  equity. 
On  this  appeal  the  whole  cause  is  open  and  all  previous 
rulings,  orders  and  exceptions,  together  with  the  final 
decree,  are  subject  to  review  by  the  upper  court  to  ren- 
der a  final  decision  in  the  cause  upon  an  examination  of 
the  entire  record."^ 

69.  In  regard  to  appeals,  see  gen- 
erally Chapter  XXVIII,  post,  p.  830. 


CHAPTER  XXII 

FINAL  HEARING 

§  387.  Setting  cause  for  hearing.  As  has  been  shown 
in  the  preceding  chapter,  the  cause  may  be  brought  to  an 
issue  and  set  for  hearing  at  different  stages  in  the  pro- 
ceedings. The  statutes  and  rules  of  the  various  jurisdic- 
tions regulate  the  manner  of  setting  the  cause  for  final 
hearing  and  the  time  when  it  may  be  done.^    It  should  not 


1.  See  Delaware,  Rule  54;  Flor- 
ida, Rules  85,  86;  Maine,  R.  S., 
Chap.  79,  Sec.  19,  as  amended,  and 
Laws  of  1911,  Chap.  25;  Maryland, 
Rule  43;  Massachusetts,  Rule  27; 
Michigan,  Rule  14;  New  Jersey, 
Rules  2,  3,  and  11;  Pennsylvania, 
Rule  60;  Rhode  Island,  Rule  31,  and 
the  statutes  of  the  various  jurisdic- 
tions. 

See  Flederman  v.  Flederman,  112 
Md.  226  (1910),  as  to  setting  cause 
for  hearing  in  Baltimore  City  Cir- 
cuit Court. 

A  notice  of  hearing  for  any  time 
after  the  opening  of  the  term,  but 
specifying  no  day,  is  irregular,  and 
would  not  authorize  an  ex  parte 
hearing;  but  the  irregularity  can  be 
waived.  Munch  v.  Shabel,  37  Mich. 
166  (1877). 

In  Michigan,  if  the  cause  is  to 
be  heard  on  testimony  taken  in 
open  court,  the  case  must  be  no- 
ticed for  the  first  day  of  the  term 
and  cannot  be  afterward.  Dunn  v. 
Judge  Superior  Court  of  Detroit,  29 
Mich.  228   (1874). 

The   cause   need   not  be   noticed 


for  hearing  or  placed  on  the  term 
calendar  when  there  is  no  appear- 
ance by  defendant.  Warner  v. 
Juif,  38  Mich.  662  (1878). 

When  a  proceeding  is  ancillary, 
it  is  within  the  discretion  of  the 
court  to  fix  a  time  for  hearing. 
Baker  v.  Lillibridge,  117  Mich.  325 
(1898). 

In  Alabama  the  parties  may  by 
consent  set  down  causes  for  hearing 
on  such  day  of  the  term  as  they 
may  select.     Code,  Sec.  3206. 

A  judge  cannot  hold  a  hearing 
in  vacation  unless  such  power  is 
given  by  statute.  Blair  v.  Reading, 
99  111.  600  (1881). 

In  some  states  by  statute,  chan- 
cery courts  are  always  open  for 
business,  including  the  hearing  of 
causes.  Maine,  R.  S.,  Chap.  79,  Sec. 
11;  Massachusetts,  R.  L.,  Chap.  159, 
Sec.  18;  Vermont,  Pub.  Stat.  1906, 
Sec.  1239. 

In  others  the  chancellor  has  au- 
thority to  hear  causes  in  vacation 
by  consent  of  parties.  Mississippi, 
Code,  1906,  Sec.  506;  Rhode  Island, 
Gen.  Laws,  1909,  Chap.  275,  Sec.  11; 


632 


FINAL  HEARING 


633 


be  set  for  hearing  upon  bill,  answer  or  plea,  and  evidence 
before  the  limit  expires  for  the  taking  of  testimony ,2  and 
it  should  be  remembered  that  the  court  will  not  hear 
a  cause  or  set  it  for  hearing  until  the  bill  has  been  taken 
pro  confesso  against  any  defendant  who  has  failed  to 
appear  or  make  a  defense.  The  plaintiff  should  therefore 
see  that  the  proper  entry  pro  confesso  is  made  before 
making  application  to  have  the  cause  set  for  hearing.^ 

The  proper  way  to  proceed  in  order  to  get  the  cause  thus 
set  for  hearing  is  by  filing  a  written  motion  asking  the 
court  to  set  the  cause  for  hearing  on  a  certain  day,  and 
then  to  give  notice  of  such  motion  by  sending  a  copy 
thereof  to  the  adverse  party  in  the  usual  way.*    When  a 


Vermont,  Pub.  Stat.,  1904,  Sec. 
3427. 

In  Maine  there  are  no  terms  of 
court  in  equity  proceedings,  but  on 
motion  of  either  party  a  cause  in 
equity  is  set  down  for  hearing  at 
such  time  as  the  court  shall  order. 
Allan  V.  Allan,  101  Me.  153 
(1906). 

United  States  Equity  Eule  56 
(1913)  provides  that  after  the  time 
has  elapsed  for  taking  and  filing 
depositions,  the  case  shall  be  placed 
on  the  trial  calendar.  And  see 
Eule  47. 

In  Virginia  the  case  is  set  for 
hearing  by  rule  entered  in  court. 
Eonald  v.  Princeton  Bank,  90  Va. 
813   (1894). 

In  Illinois  the  case  stands  for 
hearing  on  the  filing  of  the  replica- 
tion. Thomas  v.  Coultas,  76  111.  493 
(1875).  But  it  is  error  to  proceed 
to  hearing  and  render  final  decree 
at  the  same  term  that  the  replica- 
tion is  filed.  Burton  v.  City  of  Chi- 
cago, 62  111.  177  (1871),  although  it 
may  be  done  if  the  parties  do  not 
object.  Gregg  v.  Brower,  67  111. 
525  (1873).    The  cases  are  heard  in 


their  order  on  the  docket,  unless 
the  court  for  good  reason  otherwise 
directs.  Clark  v.  Marfield,  77  111. 
258  (1875). 

2.  Poling  V.  Johnson,  2  Eob. 
(Va.)  255  (1843),  and  see  Eichard- 
son  V.  Stillinger,  12  Gill.  &  J.  (Md.) 
477   (1842). 

Where  a  replication  is  filed  and 
the  cause  is  set  for  hearing  gener- 
ally before  the  time  limit  for  the 
taking  of  testimony  expires,  it  is 
a  waiver  of  the  replication.  Eicker 
V.  Portland,  etc.,  Ey.  Co.,  90  Me. 
395  (1897). 

See  Chapter  XII,  Sec.  254,  mite, 
p.  439,  and  Chapter  XIII,  Sec.  281, 
ante,  p.  485,  in  regard  to  setting  for 
hearing  on  bill  and  plea  or  bill  and 
answer   alone. 

3.  Ehode  Island  Hospital  Trust 
Co.  V.  Humphrey,  78  Atl.  625  (E.  I. 
1911).  See  Chapter  IX,  "Pro  Con- 
fesso,"  ante,  pp.  357  et  seq. 

4.  Where  the  bill  has  been  taken 
X>ro  confesso  as  to  one  defendant 
for  want  of  an  appearance,  no  no- 
tice need  be  sent  to  him,  but  where 
defendant  appeared  by  solicitor, 
and  bill  is   taken  pro  confesso  for 


634 


EQUITY  PRACTICE 


demurrer  or  plea  is  inserted  in  an  answer,  the  demurrer 
or  i)lea  should  be  heard  before  the  plaintiff  replies  or  goes 
into  evidence  and  before  there  is  any  hearing  on  the 
merits.^  If  e\'idence  is  gone  into  and  the  cause  set  for  final 
hearing  before  taking  up  the  demurrer,  though  the  defend- 
ant may  still  have  the  benefit  of  his  demurrer  in  such  case, 
yet  if  the  demurrer  is  sustained  the  plaintiff  will  not  then 
be  allowed  to  amend  his  bill  except  upon  terms  if  at  all. 
Where  a  cross  bill  has  been  filed,  the  plaintiff  to  the  cross 
bill  may  have  an  order  that  they  be  heard  together,  after 
both  causes  are  at  issue  or  ready  to  be  heard.*^  A  party  is 
entitled  to  only  one  hearing  on  the  merits.  He  cannot  split 
up  defences  and  try  each  defence  separately.'^  A  suit  in 
equity  cannot  be  heard  and  disposed  of  unless  it  can  be 
heard  as  to  all  who  are  necessary  parties.^ 


want  of  an  answer,  he  is  held  en- 
titled to  notice  of  the  hearing. 
Cook  V.  French,  96  Mich.  525 
(1893);  Hart  v.  Small,  4  Paige  (N. 
Y.)  551   (18;]-4). 

5.  See  Chapter  XI,  "Demur- 
rers," See.  239,  ante,  p.  416;  Chap- 
ter XII,  "Pleas,"  Sec.  250,  onte, 
p.  436. 

6.  Eeed  v.  Kemp,  16  111.  445 
(1855);  Myers  v.  Manny,  63  111. 
211  (1872);  Whyte  v.  Arthur,  17  N. 
J.  Eq.  521  (1866);  White  v.  Buloid, 
2  Paige  (X.  Y.)  164  (1830);  Ran- 
dolph's App.,  66  Pa.  St.  178  (1870). 

Where  the  cross  bill  is  only  re- 
motely connected  with  the  original 
bill  and  is  susceptible  of  determina- 
tion without  affecting  the  original, 
it  may  be  heard  first.  Carroll  v. 
Taylor,  102  Tenn.  451  (1899). 

Where  the  cross  plaintiff  desires 
to  stay  proceedings  on  an  original 
bill  he  must  apply  on  notice  for 
such  an  order.  Witham  v.  Carle,  10 
N.  J.  Eq.  543  (1856).  But  cause  must 
be   shown  to  justify  the   delay   of 


the  original  bill.  Wiley  v.  Platter, 
17  111.  538   (1856). 

A  cross  defendant  is  entitled  to 
time  to  answer  a  cross  bill  attack- 
ing his  right,  and  there  cannot  be 
a  hearing  on  the  original  bill  and 
the  cross  bill  immediately  on  the 
filing  of  the  latter.  Norton  v.  Joy, 
6  111.  App.  406  (1880).  See  Phil- 
ips V.  Edrall,  127  111.  535  (1897). 

When  a  cross  bill  was  not  filed 
until  three  years  after  the  original 
suit  was  commenced  it  was  held  not 
to  be  an  abuse  of  discretion  to  pro- 
ceed to  final  hearing  on  the  original 
bill  before  the  cross  bill  was  ready. 
Kelsey  v.  Clausen,  257  111.  402 
(1913). 

7.  Hume  v.  Bank,  1  Lea  (Tenn.) 
220,  223  (1878). 

8.  Graham  v.  Elmore,  Harrington 
(Mich.)  265  (1882);  Hunt  v.  Wal- 
ker, 40  Miss.  590  (1866). 

It  cannot  be  set  for  hearing  as 
to  part  of  the  case.  Gray  v.  El- 
dred,   144  Mich.  23    (1906);   Knox- 


FINAL  HEARING 


635 


§  388.  Continuances.  An  application  for  a  continuance 
rests  in  the  discretion  of  the  chancellor  and  his  decision  is 
not  subject  to  review  on  appeal.'^ 

§  389.  Before  whom  hearings  are  held.  Hearings  in 
equity  proceedings  are  generally  held  before  a  chancellor 
or  single  justice.  He  has  full  power  to  decide  any  motion 
or  cause  so  heard  and  to  enter  such  order  and  decree  as 
seems  just  and  proper  to  him  and  in  accordance  with  the 
established  principles  of  equity  jurisprudence,  subject  to 
appeal  and  exceptions  as  provided  by  statute.  The  deci- 
sion of  the  chancellor  or  a  single  justice  upon  matters  of 
fact  in  an  equity  hearing  will  not  be  reversed  unless  it 
clearly  appears  that  such  decision  is  erroneous. ^'^ 

§  390.  Proceedings  at  the  hearing — Reading  the  plead- 
ings. At  the  time  and  place  appointed  for  the  hearing, 
which  may  usually  be  held  either  in  the  court  room  or  in 


ville  V.  Commercial  Bank,  1  Lea 
(Tenn.)   220   (1878). 

9.  Trammel  v.  Vane,  62  Ala.  301 
(1878);  Dornan  v.  Buckley,  119  111. 
App.  523  (1905) ;  McAllister  v.  Eich- 
ardson,  60  So.  570  (Miss.  1913); 
Berger  v.  Harrison,  1  Tenn.  483 
(1809);  Pacific  Coal  and  Transpor- 
tation Co.  V.  Pioneer  Mining  Co., 
205  Fed.  577  (1913).  And  see  Fed- 
eral Equity  Rule  57  (1913)  in  re- 
gard to  continuances  in  the  Federal 
courts. 

In  Alabama  an  "application  for 
continuance  for  want  of  testimony 
must  be  in  writing  and  conform  to 
the  rule  in  regard  to  the  continu- 
ance of  trials  in  the  courts  of  law." 
Eule  70.  And  "no  application  for 
a  continuance  for  want  of  testi- 
mony must  be  considered  unless 
the  equity  of  the  bill  is  admitted, 
until  the  question  of  equity  is  dis- 
posed of."     Rule  71. 

Continuance  may  be  granted  for 
bringing  in  new  parties.     Beardsley 


V.  Knight,  10  Vt.  185,  33  Am.  Dec. 
193  (1838).  Or  to  defendant  to 
prepare  his  defense  after  substan- 
tial amendment  of  pleadings. 
Lewis  V.  Lamphere,  79  111.  187 
(1875).  Or  for  the  parties  to  take 
further  proof.  Holcombe  v.  Tren- 
ton White  City  Co.,  82  Atl.  618  (N. 
J.  1912).  But  an  excuse  must  be 
shown  for  not  having  taken  the 
proof  at  the  proper  time.  Robbing 
V.  Hanbury,  37  Fla.  468  (1896). 

10.  Ehrich  v.  Brunshwiler,  241 
111.  592  (1909);  Carll  v.  Kerr,  89 
Atl.  150  (Me.  1914);  Noyse  v. 
Ilouey,  98  Miss.  30  (1910);  Scran- 
ton  Gas  &  Water  Co.  v.  Delaware, 
L.  &  W.  R.  Co.,  225  Pa.  152  (1909); 
Morgan  v.  Morgan,  82  Vt.  243 
(1909);  Protyman's  Executor  v. 
Joseph,  65  W.  Va.  788  (1909).  The 
statement  in  Gilmore  v.  Patterson, 
36  Me.  544,  549  (1853),  that  the 
finding  of  a  single  justice  upon  a 
question  of  fact  is  conclusive,  is  not 
correct. 


636  EQUITY  PRACTICE 

the  chambers  of  the  presiding  justice,  the  court  and  the 
parties  being  present,  the  solicitor  for  the  plaintiff  calls 
up  the  cause  by  its  title  and  number  on  the  equity  docket 
and  states  that  the  parties  are  now  ready  to  proceed  with 
the  hearing.  The  plaintiff's  solicitor  then  begins  by  read- 
ing his  bill,  or  if  it  is  long,  by  stating  the  substance  of  it 
unless  the  court  shall  require  it  to  be  read  verbatim.  The 
defendant's  solicitor  then  reads  or  states  the  substance 
of  his  answer  or  other  pleading  as  the  case  may  be  and  if 
a  replication  has  been  filed,  so  states. 

§  391.  — Introducing  the  evidence.  The  evidence  is 
then  introduced  as  follows:  First,  the  plaintiff' 's  solici- 
tor goes  forward  with  the  evidence  in  support  of  the  bill 
by  reading  the  evidence  if  in  the  form  of  depositions  or 
by  examining  the  witnesses  if  taken  orally  in  open  court; 
the  evidence  for  the  defendant  is  then  read  or  taken  out 
by  his  solicitor  in  a  similar  manner,  and  the  solicitor  for 
the  plaintiff  introduces  his  evidence  in  rebuttal,  if  any. 
If  there  has  been  a  master's  report  upon  any  partial  issue 
of  the  cause,  this  should  be  read  in  evidence  by  the  party 
procuring  the  order  of  reference  or  by  the  jDlaintiff'  where 
the  order  was  made  by  the  court  of  its  own  motion. 
Where  the  entire  issue  in  the  cause  is  one  of  fact  which 
has  been  referred  to  the  master,  the  hearing  for  confirma- 
tion thereof  constitutes  the  final  hearing.  The  report 
should  in  such  case  be  read  by  the  party  moving  to  have 
the  report  confirmed,  and  when  after  argument,  the  report 
is  finally  allowed,  the  cause  is  at  an  end  and  a  decree  in 
pursuance  thereof  follows  as  a  matter  of  course.^ "^^ 

lOa.  Where  there  is  a  reference  case   was   referred   to  a   master   to 

to  a  master  to  take  and  report  the  report  proofs   without   conclusions, 

evidence  with  his  conclusions,  it  is  Griswold  v.  Griswold,  111  111.  App. 

not    competent   on   the   hearing   of  269  (1903).     And  where  a  master's 

the  cause  for  the  court  to  hear  any  term  of  office  expires  after  the  tak- 

evidence   that    was    not    taken   be-  ing  of  testimony  is  completed  and 

fore  the  master.    Cox  v.  Pierce,  120  before  he  has  made  his  report,  the 

111.    556    (1887).      But    the    parties  court  may  at  its  discretion  hear  the 

may  offer  further  evidence   if  the  case   in   open   court   upon   the   evi- 


FINAL  HEARING  637 

§392.  — The  arguments.  The  party  who  holds  the 
affirmative  of  the  issue  and  upon  whom  the  burden  of 
proof  rests  throughout  to  make  out  a  case,  has  the  right 
to  open  and  close  the  arguments.  ^^ 

In  the  case  of  a  hearing  on  bill  and  cross  bill,  answers 
and  evidence,  although  both  parties  have  affirmative  alle- 
gations to  sustain,  yet  the  plaintiff  in  the  original  bill  has 
the  right  to  open  and  close.^  - 

§  393.  — Modifying  interlocutory  orders.  According 
to  the  modern  practice,  at  the  final  hearing  all  interlocu- 
tory orders  made  at  any  previous  stage  of  the  proceed- 
ings are  before  the  court  and  may  be  modified,  altered  or 
vacated  as  justice  may  require. ^^ 

§  394.  Objections  at  the  hearing.  Merely  formal  defects 
in  a  bill  cannot  be  objected  to  at  the  hearing.^*  When 
the  cause  is  heard  without  objections  by  either  party,  all 
formal  steps  not  taken  by  either  which  the  other  had  a 
right  to  insist  upon  in  bringing  the  cause  to  a  hearing, 
must  be  regarded  as  waived.  ^^ 

dence  so  taken  without  referring  it  410   (1869);   Waring  v.  Turton,  44 

to   another   master.      Coel   v.    Glos,  Md.  535   (1876);  Park  v.  Johnson, 

232  111.  142,  15  L.  E.  A.  (N.  S.)  413  7  Allen  378   (1863);  Davis  v.  Eob- 

(1908).  erts,    Sm.    &    M.    Ch.    (Miss.)    543 

11.  Mettert  v.  Hagan,  18  Gratt.  (1843);  Kimball  v.  Alcorn,  45  Miss. 
(Va.)  231  (1868).  "The  right  to  145  (1871);  Wright  v.  Strother,  76 
open  and  close  the  arguments  be-  Va.  857  (1882);  Eepass  v.  Moore, 
longs  to  the  party  who  pleads  af-  96  Va.  147  (1898);  Perkins  v.  Four- 
firmative  matter  in  abatement;  or  niquet,  6  How.  (U.  S.)  206  (1848). 
who  moves  to  dismiss;  or  who  de-  14.  Freeman  v.  Scofield,  16  N.  J. 
murs;  or  who  pleads  affirmative  Eq.  28  (1863);  McElwain  v.  Willis, 
matter  in  bar  or  who  excepts  to  an  3  Paige  (N.  Y.)  505  (1832).  Thus 
answer,  deposition  or  master's  re-  technical  objections  to  testimony 
port;  or  who  objects  to  a  witness  or  come  too  late  at  the  hearing.  De- 
to  his  evidence;  or  who  maintains  Courcey  v.  Collins,  21  N.  J.  Eq.  357 
the  affirmative  or  any  given  ques-  (1871). 

tion;  or  who  has  the  entire  burden  15.  Allen  v.   Mayor,   18   Blatchf. 

of  proof  to  bear."     Gibson's  Suits  239,  240,  7  Fed.  483   (1880).     So  it 

in  Chancery,  Sec.  524,  n.  7.  is  held  that  the  objection  for  want 

12.  Murphy  v.  Stults,  1  N.  J.  Eq.  of  formal  parties  cannot  be  taken 
560   (1832).  at  the  hearing;   but  the   objection 

13.  Gibson   v.   Eees,   50   111.   383,  for  want  of  necessary  parties  may 


638 


EQUITY  PRACTICE 


§  395.  Dismissal  of  bills  at  the  final  hearing.  When  a 
bill  is  dismissed  at  the  hearing  upon  a  mere  defect  of  form 
in  the  pleadings,  and  not  upon  the  merits  of  the  case,  it 
should  be  dismissed  without  prejudice  to  the  plaintiff's 
right  to  bring  a  new  suit.^''  When  a  bill  is  dismissed  on 
such  grounds,  if  the  words  "without  prejudice"  are 
inserted  in  the  decree  the  plaintiff"  will  be  pennitted  to 
bring  another  suit  at  any  time  involving  the  same  subject 
matter,^^  but  if  a  bill  is  dismissed  after  hearing  and  it 
is  not  stated  to  be  without  prejudice,  the  decree  is  a  bar 
to  another  suit  for  the  same  cause  between  the  same 
parties.^* 

When  a  bill  is  thus  dismissed  absolutely  instead  of  with- 
out prejudice,  for  a  mere  foraial  defect  not  going  to  the 
merits,  the  decree  will  be  reversed  on  appeal,  with  instruc- 
tions to  dismiss  without  prejudice  or  to  permit  proper 
amendments  as  the  case  may  be.^^ 

When  the  case  is  heard  on  bill  and  answer  and  the  latter 


be  raised  at  the  hearing  and  the 
court  ■will  then  order  the  cause- to 
be  stayed  for  the  addition  of  such 
parties.  Hussey  v.  Dole,  24  Me.  20 
(1844);  Haughton  v.  Davis,  23  Me. 
28,  34  (1843);  Felch  v.  Hooper,  20 
Me.  159  (1841).  Objection  to  the 
jurisdiction  may  also  be  taken  at 
the  hearing.  Woodman  v.  Freeman, 
25  Me.  532  (1846). 

16.  Crosier  v.  Acer,  7  Paige  (N. 
Y.)  138  (1838).  And  see  Howth  v. 
Owens,  30  Fed.  910  (1887).  So  a 
decree  dismissing  a  bill  for  want  of 
parties.  Beals  v.  Cobb,  51  Me.  348 
(1863) ;  Lockridge  v.  Sherrot,  5  Lea 
(Tenn.)  376  (18.34);  Shaffer  v.  Fet- 
ter, 30  W.  Va.  248  (1887).  Or  for 
misjoinder  of  parties.  House  v. 
Mullen,  22  Wall.  (U.  S.)  42  (1874). 
Or  for  multifariousness.  Williams 
V.  Jackson,  107  U.  S.  478  (1882). 
Or  for  want  of  jurisdiction.  Kar- 
tell   V.    Tilghman,    99    U.    S.    547 


(1878).  Or  for  a  defence  in  abate- 
ment. Wilson  V.  Wilson,  23  Md. 
162  (1865).  Or  for  omission  of 
mere  formal  proofs.  Bobbins  v. 
Hamburg,  37  Fla.  468  (1896); 
Evans  v.  Wells,  7  Humph.  (Tenn.) 
559  (1847).  Or  for  defective  bill. 
Cobb  V.  Baker,  95  Me.  89  (1901); 
Wilson  V.  Egelston,  27  Mich.  257 
(1873), — should  be  without  preju- 
dice or  should  state  grounds  of  dis- 
missal.    See  also  Alabama  Rule  28. 

17.  Xo.  Pac.  R.  Co.  v.  St.  Paul 
Ry.  Co.,  47  Fed.  536,  537  (1891). 

18.  Durant  v.  Essex  Co.,  8  Allen 
(Mass.)  103  (1864);  Holmes  v. 
Remsen,  7  Johns.  Ch.  (N.  Y.)  286 
(1823);  Low  v.  Mussey,  41  Vt.  393 
(1868);  Case  v.  Beauregard,  101  U. 
S.  688  (1879). 

19.  Rogers  v.  Durant,  106  U.  S. 
644  (1882);  Kendig  v.  Dean,  97  U. 
S.  423  (1878);  House  v.  Mullen,  22 
Wall.   (U.  S.)  42  (1874). 


FINAL  HEARING  639 

completely  denies  all  the  equities  of  the  bill,  and  the  plain- 
tiff has  not  met  those  denials  with  any  proof  nor  made 
issue  thereon  by  replication,  the  answer  must  be  taken  as 
true  and  the  bill  dismissed  for  want  of  equity .^'^ 

Where  a  suit  is  brought  jointly,  the  bill  will  be  dis- 
missed if  either  of  the  j^laintiffs  fails  to  make  out  a  case 
for  relief. ^^  So  where  a  plaintiff's  cause  of  action  is 
against  the  defendants  jointly,  the  bill  will  be  dismissed 
if  a  cause  of  action  against  the  defendants  jointly  be  not 
made  out.^^ 

§  396.  Retaining  cause  for  further  relief.  A  court  of 
equity  having  properly  obtained  jurisdiction  over  a  cause 
in  the  first  instance,  even  though  the  relief  primarily 
sought  cannot  be  granted,  will  sometimes  retain  the  cause 
for  other  relief.  Thus  where  specific  performance  or  can- 
cellation is  sought  and  it  appears  from  facts  disclosed  at 
the  hearing,  but  not  known  to  the  plaintiff  when  he 
brought  his  suit,  that  the  special  relief  prayed  for  has 
become  impracticable  and  the  plaintiff  is  entitled  to  the 
only  alternative  relief  possible,  that  of  damages,  the  court 
then,  instead  of  causing  the  plaintiff  the  trouble  and 
expense  of  beginning  over  again  at  law,  may  retain  the 
cause,  decide  all  the  issues  involved  and  decree  the  pay- 
ment of  mere  compensatory  damages. ^^  So  a  bill  may  be 
retained  against  a  trustee  praying  for  an  account,  etc.,  in 
order  to  effect  an  accounting  between  the  parties,  includ- 
ing matter  subsequent  to  the  filing  of  the  bill,  although 
the  plaintiff  has  failed  to  establish  the  allegations  in  his 
bill.24 

20.  Am.  Carpet  Lining  Co.  v.  23.  Pomeroy,  See.  237;  Milkman 
Chipman,  146  Mass.  385  (1888);  v.  Ordway,  106  Mass.  232,  253 
Parker  v.  Town  of  Concord,  39  Fed.  (1870);  Chartier  v.  Mitchell,  56  N. 
718   (1889).  H.  478  (1876);  Berry  v.  Van  Win- 

21.  Jones  v.  Bank,  29  Conn.  26  kle,  2  N.  J.  Eq.  269  (1839) ;  Head  v. 
(1860).  Meloney,  111  Pa.  99  (1885);  Crubb 

22.  McElroy  v.  Ludlum,  32  N.  J.  v.  Sharkey,  90  Va.  831  (1894). 

£q.  828,  832  (1880);  Mandeville  v.  24.  Hagar   v.   Whitmore,   82   Me. 

Riggs,  2  Pet.  (U.S.)  482  (1829).  248    (1890);   Frelinghuysen  v.   Nu- 


640 


EQUITY  PRACTICE 


§  397.  Retaining  a  cause  to  await  action  at  law.  It  is  a 
general  rule  that  if  the  title  to  lands  is  disputed,  the  right 
must  be  established  at  law  and  the  bill  retained  until  it  is 
settled.-"^  Thus  upon  a  bill  for  partition,  if  the  legal  title 
to  the  lands  is  put  in  issue,  the  court  will  not  proceed  to 
settle  such  title,  but  will  either  dismiss  the  bill  or  retain 
it  to  allow  the  title  to  be  determined  in  an  action  at  law.-** 
So  in  a  bill  to  annul  a  chattel  mortgage  or  if  found  valid 
to  redeem  the  same,  the  plaintitf  was  sent  to  determine 
her  title  in  an  action  of  replevin,  since  her  remedy  at  law 
was  deemed  adequate,  but  in  case  she  should  fail  in  her 
replevin  suit,  the  bill  was  retained  for  amendment  as  a 
bill  to  redeem.-" 


gent,  36  Fed.  229  (1888);  Clark  v. 
Wooster,  119  U.  S.  322  (1886). 

25.  Vreeland  v.  Vreeland,  49  N. 
J.  Eq.  322  (1892). 

See  as  to  the  direction  of  an  ac- 
tion at  law,  Farnsworth  v.  Sueed, 
3  Sneed  (Tenn.)  252  (1855);  Dela- 
ware, etc.,  Railroad  Co.  v.  Becking- 
ridge,  56  N.  J.  Eq.  595  (1898).  In 
the  latter  case  it  was  held  that 
where  an  action  at  law  has  been 
directed  by  a  court  of  chancery, 
and  a  judgment  obtained,  and  pro- 
ceedings are  pemling  to  review  al- 
leged errors  in  law  b}'  writ  of 
error,  the  final  hearing  in  equity 
will  stand  over  and  final  decree  will 
be  reserved  pending  the  decision  on 
the  writ  of  error. 

26.  Outcalt  v.  Helme  Co.,  42  N. 
J.  Eq.  665,  676    (1887);   Brown   v. 


Iron  &  Coal  Co.,  40  Fed.  849  (1889). 
But  where  the  defendant  sets  up 
an  equitable  title  to  the  whole  es- 
tate in  the  premises  or  impeaches 
the  complainant's  title  on  equitable 
grounds,  the  court  will  not  suspend 
the  suit  until  the  title  is  settled  at 
law,  but  will  pass  upon  such  title 
and  settle  all  disputes  concerning 
it  in  the  partition  suit  and  grant 
relief  accordingly.  Read  v.  Huflf, 
40  N.  J.  Eq.  229  (1885). 

27.  York  v.  Murphy,  91  Me.  320, 
323  (1898).  In  Haskins  v.  Lom- 
bard, 16  Me.  140  (1839),  the  court 
held  that  the  pending  of  a  bill  in 
equity  claiming  the  specific  per- 
formance of  a  contract,  does  not 
preclude  the  plaintiff  in  equity  from 
making  a  defence  at  law  in  a  suit 
by  the  other  party  against  him. 


CHAPTER  XXIII 

DECREES 


§  398.  General  nature  of  decrees.  A  decree  is  a  de- 
cision or  order  of  the  court  pronounced  after  a  hearing 
upon  the  issue,  determining  tlie  rights  of  the  parties  to 
the  suit.^  A  decree  is  distinguished  from  a  decretal 
order  in  that  the  former  is  made  upon  the  hearing,  and 
the  latter  is  made  upon  motion  or  petition  either  before 
or  after  the  hearing.-  Where  the  court  has  jurisdiction 
over  the  subject  matter  and  the  parties,  a  decree  is  con- 
clusive upon  the  parties  until  reversed  on  appeal,  im- 
peached by  an  original  bill  for  fraud  or  set  aside  by 
bill  of  review.^ 


1.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  986. 

2.  A  decretal  order  has  been 
said  to  be  a  general  or  special  di- 
rection governing  or  controlling 
the  course  of  a  chancery  suit  and 
finally  determining  some  right  be- 
tween the  parties.  Thompson  v. 
McKim,  6  Har.  &  J.  (Md.)  302, 
3.19    (1825). 

On  the  other  hand,  it  has  been 
defined  to  be  a  preliminary  order 
by  which  no  question  is  determined 
and  no  right  established  in  dis- 
tinction to  an  interlocutory  decree 
by  which  something  touching  the 
merits  is  adjudged.  Bissell  Car- 
pet Sweeper  Co.  v.  Goshen  Sweeper 
Co.,   72   Fed.   545,   554    (1896). 

An  entry  of  a  final  decree  be- 
fore the  expiration  of  the  time 
limited  for  the  filing  of  a  bill  of 
exceptions    is    erroneous,    and    will 

641 

Whitehouse  E.  P.  Vol.  1—41 


operate  as  an  order  for  a  decree 
to  be  entered  after  the  time  limit 
expires  or  the  exceptions  have 
been  decided.  Prescott  v.  Pres- 
cott,   175   Mass.   64    (1899). 

3.  Gardiner  v.  Miles,  5  Gill. 
(Md.)  94  (1847);  Barbour  v.  Tomp- 
kins, 58  W.  Va.  572,  3  L.  E.  A.  (N. 
S.)  715  (1905).  All  persons  who  are 
parties  or  privies  to  a  decree  are 
bound  by  it,  but  none  others.  Dale 
V.  Roosevelt,  1  Paige  (N.  Y.)  35 
(1828).  A  decree  cannot  be  made 
as  to  any  who  are  not  parties  to 
the  suit.  Kelly  v.  Kelly,  126  111. 
550  (1888);  Armstrong  v.  Arm- 
strong, 19  N.  J.  Eq.  357  (1868); 
Boyd  V.  American  Carbon  Black 
Co.,  182  Pa.  St.  206  (1897);  Bar- 
rett V.  McAllister,  33  W.  Va.  738, 
(1890).  Except  possibly  to  order 
payment  of  money  to  persons  not 
parties.    See  Sec.  409,  post,  p.  653. 


642 


EQUITY  PRACTICE 


§  399.  Kinds  of  decrees.  Decrees  and  orders  in  equity 
proceedings  are  of  two  general  kinds,  interlocutory  and 
final.  An  interlocutor^^  decree  is  most  commonly  de- 
fined as  any  decree  made  before  final  decision,  and  for 
the  purpose  of  ascertaining  matter  of  law  or  fact  prep- 
aratory to  a  final  decree.^  A  final  decree  is  one  which 
fully  decides  and  disjDOses  of  the  whole  cause,  leaving 
no  further  questions  for  the  future  consideration  and 
judgment  of  the  court.^ 


The  court  will  not  render  a  final 
decree  until  all  the  necessary  par- 
ties are  before  it  either  by  actual 
or  constructive  service  of  process 
or  by  voluntary  appearance. 
Pratt  V.  Pratt,  3  111.  App.  582 
(1878);  Reed  v.  Baker,  42  Mich. 
272    (1879). 

Nor  will  it  make  a  final  decree 
until  the  case  is  presented  in 
such  a  form  as  will  enable  the 
court  to  make  a  final  disposition 
of  the  case.  Graham  v.  Elmore, 
Karr.   (Mich.)   264   (1842). 

4.  Cockran  v.  Cooper,  2  Del.  Ch. 
27  (1837);  Patterson  v.  Hopkins, 
23  Mich.  541  (1871);  Noel's  Admr. 
\\  Noel's  Admr.,  86  Va.  109 
(1889);  Gunnell  v.  Dixon,  101  Va. 
174  (1903);  Fowler  v.  Lewis,  36 
W.  Va.  112  (1892);  Fairbank  Co. 
V.  Windsor,  124  Fed.  200  (1905); 
Blythe  v.  Hinckley,  84  Fed.  228 
(1897). 

If  a  decree  is  necessarily  inter- 
locutory it  cannot  be  made  final 
by  any  phraseology.  Ward  v. 
Funsten,   86   Va.   359    (1889). 

5.  Alabama.  Gentry  v.  Lawley, 
142   Ala.   333    (1904). 

Florida.  State  v.  White,  40  Fla. 
297  (1898). 

Maine.  Gilpatrick  v.  Glidden, 
82   Me.    203    (1899). 

Michigan.  Witbeck  v.  Chitten- 
den, 50  Mich.  426   (1883). 


Mississippi.  Humphreys  v.  Staf- 
ford,   71    Miss.    135    (1893). 

Virginia.  Parker  v.  Logan,  82 
Va.  376  (1886);  Pace  v.  Ficklin, 
76   Va.    292    (1882). 

A  mere  order  for  a  decree  before 
it  is  drawn  in  due  technical  form 
is  not  a  final  decree  and  amend- 
ments may  be  had  in  the  discre- 
tion of  the  court  even  after  such 
order.  Gilpatrick  v.  Glidden,  82 
Me.    203    (1899). 

In  Massachusetts  a  final  decree 
has  been  defined  as  one  "which 
provides  for  all  contingencies 
which  may  arise,  ami  leaves  no 
necessity  for  any  further  order  of 
the  court  to  give  all  the  parties 
the  entire  benefit  of  the  decision." 
Gerrish  v.  Black,  109  Mass.  474, 
477  (1872).  In  Forbes  v.  Tucker- 
man,  115  Mass.  115,  119  (1874),  it 
was  held  that  no  decree  is  a  final 
one  which  leaves  anything  open  to 
be  decided  by  the  court  and  does 
not  determine  the  whole  case.  In 
the  Federal  courts  a  final  decree 
is  held  to  be  one  which  deter- 
mines the  whole  controversy  be- 
tween the  parties,  leaving  nothing 
to  be  done  except  to  carry  it  into 
execution. 

It  is  improper  to  render  a  final 
decree  which  leaves  judicial  ques- 
tions to  be  determined  by  ofiicers 
charged  with  execution  of  the  de- 


DECREES  643 

Decrees  may  be  further  subdivided  into  decrees  nisi, 
nunc  pro  tunc,  supplemental,  conditional,  pro  forma,  pro 
confesso,  on  default  at  hearing  and  by  consent.  Decrees 
pro  confesso  have  already  been  considered  at  length  in 
a  previous  chapter.''' 

§  400.  Decrees  nisi.  A  decree  nisi  is  one  which  is  to 
take  effect  unless  the  defendant  shall  within  a  certain 
time  show  good  cause  to  the  contrary,  or  unless  the  de- 
fendant fails  to  perform  some  act  required  by  the  decree 
within  that  time.  This  decree  is  preliminary  in  its  na- 
ture, requiring  a  further  order  to  complete  it.*' 

§  401.  Decrees  nunc  pro  tunc.  Whenever  a  delay  in 
rendering  or  entering  a  decree  after  hearing  occurs  from 
the  act  of  the  court  or  the  clerk,  without  the  fault  of  the 
parties,  and  such  delay  would  work  an  injury  to  either 
party,  and  especially  the  winning  party,  the  court  will 
on  application  of  the  party  interested  order  the  decree 
to  be  dated  and  entered  as  of  the  time  when  it  should 
and  might  have  been  made  and  entered.'^  Such  a  decree 
is  said  to  be  entered  nunc  pro  tunc.    A  decree  nunc  pro 

cree.     Codwise  v.  Taylor,  4  Sneed  But   in   the   United   States   fore- 

(Tenn.)   346   (1857).  closure       decrees       are       generally 

A  final  decree  precludes  any  treated  as  final  in  the  first  in- 
further  proceedings  by  the  court  stance  and  do  not  need  a  supple- 
other  than  for  its  enforcement.  nientary  order  to  complete  them. 
Stout  V.  Stout,  104  Va.  480  (1905);  Ellis  v.  Leek,  127  111.  60,  3  L.  E. 
Waldron  v.  Harvey,  54  W.  Va.  A.  259  (1889). 
608    (1904).  7.  Dan.    Ch.    Pr.    (6th    Am.    ed.) 

See    Sees.    412,    et    seq.,    post,    p.  1016,    1017;    Michigan,    How.    St., 

659  et  seq.,  in  regard  to  correction  Sec.    7256;    Newland   v.    Gaines,    1 

of  final  decrees.  Heisk.   (Tenn.)   720   (1870);  Mitch- 

5a.  See  Chapter  IX,  ante,  p.  357.  ell   v.   Overman,   103   U.   S.   65,   26 

6.  Chicago,    etc.,   E.   Co.   v.   Fos-  L.   ed.   369    (1880);    Gray   v.   Brig- 
dick,   106  U.   S.   69    (1882).  nardello,    1    Wall.    627,    17    L.    ed. 

Decrees  nisi  were  used  in  strict  692  (1863). 
foreclosure  proceedings  in  Eng-  But  by  so  doing  the  court  can- 
land.  Clark  v.  Eeyburn,  8  Wall  not  validate  a  proceeding  which 
318,  19  L.  ed.  354  (1868);  Kin-  was  void  at  the  time  it  was  had. 
naird  v.  York,  60  L.  T.  Eep.  N.  S.  Eslow  v.  Albion,  32  Mich.  193 
380.  (1875). 


644  EQUITY  PRACTICE 

tunc  may  be  entered  in  vacation  as  of  a  previous  term;  ® 
after  an  appeal  has  been  i)rayed  for  and  granted;'-^  and 
even  after  a  very  long  interval  has  elapsed.^"  Ordina- 
rily the  death  of  a  party  operates  to  abate  the  suit  unless 
properly  revived,  but  when  a  party  dies  after  argument 
and  final  submission  of  his  ease  for  decision,  but  before 
decree,  the  court  has  the  power  to  enter  a  decree  as  of 
the  term  when  the  case  was  thus  submitted.^ ^  An  order 
of  court  is  necessary  for  the  entry  of  a  decree  nunc  pro 
tunc,  and  may  be  obtained  as  of  course  on  motion  in 
writing.^ - 

The  usual  formula  for  making  a  nunc  pro  tunc  decree 
is:  ''This  decree  was  made  on  the  (naming  the  day  the 
cause  was  heard)  and  is  entered  now  for  then  by  order 
of  the  court,"  ^^ 

§  402.  Supplemental  decrees.  There  are  some  decrees 
which  though  final  in  their  nature,  dismissing  the  bill 
or  granting  relief,  nevertheless  require  some  further 
order  or  decree  for  the  execution  of  the  original  decree 
or  for  complete  adjustment  of  all  matters  incidental  to 
the   litigation.^ ^     These   may   be    tenned    supplemental 

8.  Griswold  v.  Hill,  1  Paine  lipp  v.  Cain,  19  W.  Va.  438  (1882) ; 
(U.   S.)    483    (1825).  Mitchell    v.    Overman,    103    U.    S. 

9.  Newland   v.    Gaines,   1   Heisk.  66,  26  L.  ed.  369   (1880). 
(Tenn.)      720      (1870);      Davis     v.  12.  Burnham    v.    Dalling,    16    N. 
Jones,  3  Head  (Tenn.)  603  (1859).  J.  Eq.  310   (1863). 

10.  Euckman  v.  Decker,  27  N.  J.  13.  Gibson's  Suits  in  Chancery, 
Eq.  244,  245  (1876).  In  Lawrence  Sec.  559.  See  also  order  made  in 
v.  Richmond,  1  J.  &  W.  241  (Eng.  Mitchell  v.  Overman,  103  U.  S. 
Ch.),  twenty-three  years  had  63,  26  L.  ed.  369  (1880), 
elapsed,  and  in  Jesson  v.  Brewer,  and  United  States  v.  Gomez, 
1  Dick.  370  (Eng.  Ch.),  seventy-  1  Wall.  690,  17  L.  ed.  677 
nine   years.  (1863).     It  should  appear  by  some 

11.  Gunderman  v.  Gunnison,  39  entry  in  the  minutes  of  the  de- 
Mich.  313  (1878);  Benson  v.  Wolv-  cree,  or  in  the  caption,  or  in  the 
erton,  16  N.  J.  Eq.  110  (1863);  minutes  of  the  proceedings  in  the 
Campbell  v.  Mesier,  4  Johns.  Ch.  cause,  at  what  time  the  decree  or 
(N.  Y.)  334  (1820).  See  also  order  was  actually  entered.  Bar- 
Emery  v.  Parrott,  107  Mass.  95  clay  v.  Brown,  7  Paige  (N.  Y.) 
(1871);    but    compare    Hazard    v.  245    (1838). 

Durant,   14   E.   I.   25    (1882);   Cris-  14.  Gerrish   v.   Black,   109   Mass. 


DECREES  645 

decrees.^  ^  The  most  frequent  case  in  wliicli  a  further 
order  is  necessary  to  complete  a  decree  is  in  the  case  of 
a  decree  of  foreclosure,  where  if  the  defendant  fails  to 
pay  the  money  found  due  a  final  order  is  necessary  in 
order  to  complete  the  plaintiff's  title.^*' 

§  403,  Conditional  decrees.  A  final  decree  granting 
relief  may  impose  conditions  on  the  plaintiff,  consistent 
with  the  rules  of  equity."  If  the  plaintiff  declines  or 
refuses  to  comply  with  these  terms,  the  bill  may  be  dis- 
missed.^^ 

§  404.  Pro  forma  decrees.  A  decree  pro  forma  is  one 
rendered  as  a  matter  of  form  merely,  without  actual 
consideration  of  the  question  of  law  or  fact  decided. 
They  are  generally  made  for  the  purpose  of  facilitating 
a  speedy  appeal  and  thus  avoiding  the  expense  of  ex- 
tended proceedings  in  the  lower  court  which  may  prove 
to  be  useless.  In  many  states  final  decrees  pro  forma 
are  not  favored,  since  if  any  question  of  law  is  involved 
of  sufficient  importance,  the  statutes  generally  prescribe 
the  appropriate  procedure  by  allowing  the  court  in  its 
discretion  to  report  the  case  to  the  higher  court.  If  no 
such  question  of  law  is  involved,  it  is  not  within  the 
province  of  the  appellate  court  to  go  into  the  evidence 
and  determine  questions  of  fact  in  the  first  instance,  but 

474   (1872);  Turner  v.  Ind.  E.  Co.,  127  111,  60,  3  L.  E.  A.  259   (1889), 

8   Biss.    (U,  S.)    380    (1878).  holding  this  to  be  the  practice  in 

15.  Such     decrees     cannot     how-  England   but   not   in   Illinois, 
ever  create  any  other  or   different  17,  Walden    v.    Bodley,    14    Pet. 
liabilities   from   those   imposed   by  (U.  S.)    164,  10  L.  ed.  398   (1840). 
the    original    decree.      Walker    v.  See    also    Sparhock   v.    Harding,    9 
Courier,    9    111.    App.    418    (1881);  Vt.   41    (1837), 

Brown  v.   Thompson,   29   Mich.   72  18.  Farwell    v.    Harding,    96    111. 

(1874).     In  some  cases  where  the  32    (1880).     The   question  whether 

rights  of  the  parties  have  become  the  conditions   of  the   decree  have 

greatly  embarrassed  by  subsequent  been  duly  performed  or  not,  should 

events,  the  remedy  must  be  by  bill  be    determined    by    the    court    and 

to  enforce  the  decree.    Mummys  v.  appear   as  matter  of  record.     Chi- 

Morgan,  3  Litt.   (Ky.)   295   (1823).  cago  E.   Co.   v.  Fosdick,   106  U.  S. 

16.  Dan.   Ch.   Pr.    (6th   Am.   ed.)  70,   27.  L.  ed.  47    (1882). 
pp.    997,    998.      See   Ellis   v.   Leek, 


646 


EQUITY  PRACTICE 


it  is  entitled  to  the  previous  deliberate  judgment  of  the 
chancellor  or  single  justice  upon  a  full  hearing  and  ex- 
amination of  the  evidence. ^'^ 

§  405.  Decrees  on  default  at  hearing.  Where  a  cause 
is  set  down  for  hearing  on  the  application  of  either 
plaintiff  or  defendant  and  the  plaintiff  does  not  appear, 
the  bill  will  be  dismissed  with  costs.-*^  When  the  defend- 
ant does  not  appear  at  the  hearing,  the  practice  is  for 
the  court  to  hear  the  cause  and  give  such  a  decree  as  the 
plaintiff  is  entitled  to  on  the  pleadings  and  evidence. ^^ 
A  plaintiff  or  defendant  who  has  thus  made  default  at 


19.  Ahl's  App.,  129  Pa.  St.  26 
(1889);  State  v.  Wilson,  2  Lea 
(Tenn.)  204  (1879);  Hyndman  v. 
Hyndman,  19  Vt.  12  (1845).  In 
the  latter  CEtse  the  court  said: 
' '  This  is  an  appeal  from  a  decree 
made  by  the  chancellor  of  this  cir- 
cuit. When  the  case  was  heard  in 
the  court  of  chancery,  it  ap- 
peareil  to  me  to  be  one  of  so  much 
doubt,  that  I  did  not  feel  justified 
ic  exposing  the  parties  to  the  ex- 
pense of  taking  an  account  of  so 
long  standing,  until  the  necessity 
for  such  expense  was  fully  es- 
tablished by  the  decision  of  this 
court.  In  that  view,  I  under- 
stand, my  brethren  fully  to  eon- 
cur.  We  by  no  means  justify  the 
practice,  sometimes  adopted  in  a 
court  of  chancery,  of  allowing  ap- 
peals upon  merely  formal  decrees, 
without  hearing.  Such  a  course  is 
only  calculated  to  increase  the 
number  of  chancer}'  appeals  In  this 
court  and  delay  the  final  disposi- 
tion of  many  of  them  without 
any  adequate  saving.  Every  case 
should  be  fully  heard  in  the  court 
of  chancery;  and  then  no  doubt, 
the  chancellor  may  in  his  discre- 
tion, make  a  decree  with  a  view 
of  saving  needless  expense  to  the 


parties,  in  case  the  supreme  court 
should  be  of  opinion  the  orator 
cannot   prevail." 

See  Grant  v.  Bradstreet,  87  Me. 
583  (1895)  as  an  example  of  a 
pro  forma  final  decree. 

It  is  nevertheless  entirely  proper 
for  the  court  to  make  interlocu- 
tory rulings  pro  forma  upon  ques- 
tions of  law,  exceptions  to  which 
according  to  the  regular  practice 
are  then  saved  for  the  appellate 
court  on  appeal  from  the  final  de- 
cree, without  interrupting  the 
progress  of  the  cause. 

20.  Cleaver  v.  Smith,  114  111. 
114   (1885). 

21.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  978;  Hakewell  v.  Webber,  9 
Hare  541;  Hardwick  v.  Bassett, 
25  Mich.  149  (1872).  In  the  last 
case  it  was  held  that  where  de- 
fendant defaults  at  the  hearing, 
after  due  notice  of  hearing,  the 
plaintiff  can  take  no  decree  except 
such  as  he  would  be  entitled  to 
upon  a  contested  hearing.  Citing 
Dunham  v.  Gates,  1  Hoff.  Ch.  185 
(1839).  See  also  Cons.  Co.  v.  Trust 
Co.,  50  N.  J.  Eq.  93  (1892),  holding 
that  a  default  does  not  admit  that 
the  allegations  of  the  bill  are  suffi- 
cient   to    support    a    decree. 


DECREES 


647 


the  hearing  and  had  his  bill  dismissed  in  the  one  case  or 
a  final  decree  rendered  against  him  in  the  other,  will 
ordinarily  be  allowed  to  re-open  the  decree  on  petition 
and  payment  of  costs.-- 

§  406.  Consent  decrees.  Parties  to  a  suit  who  are  not 
under  any  disability  ^^  have  the  right  to  agree  to  any- 
thing they  please  in  reference  to  the  subject  matter  of 
their  litigation  ^^  and  the  court,  when  applied  to,  will 
make  a  decree  in  accordance  with  their  agreement,  if  it 
comes  within  the  general  scope  of  the  case  made  by  the 
pleadings.2^     A  decree  so  rendered  by  consent  is  bind- 


22.  Reopened  by  plaintiff:  Car- 
ter V.  Torrance,  11  Ga.  654  (1852); 
Kobson  V.  Cranwell,  1  Dick.  61 
(Eng.  Ch.);  Kemp  v.  Squire,  1 
Dick,  131;  Terrin  v.  Waite,  2  Dick. 
782. 

Reopened  by  defendant:  Hughes 
V.  Jones,  26  Beav.  24;  Cunning- 
ham V.  Cunningham,  1  Dick.  145; 
Fry  V.  Prosser,  1  Dick.  298;  Col- 
lins V.  Taylor,  4  N.  J.  Eq.  163 
(1842),  interlocutory;  Gaskill  v. 
Sine,   13  N.  J.  Eq.   130    (1860). 

The  above  rule  seems  to  be  well 
settled  by  the  authorities,  but  it  is 
difficult  on  principle  to  see  why  a 
decree  made  for  default  of  a  de- 
fendant at  a  hearing  where  the 
cause  is  heard  ex  parte  and  a 
decree  made  such  as  the  pleadings 
and  evidence  will  justify,  should 
be  set  aside  for  any  less  weighty 
reasons  than  a  final  decree  on  a 
bill  taken  pro  confesso,  viz. :  sur- 
prise, accident,  mistake  and  negli- 
p;Gnce  of  solicitor.  See  Sec.  197, 
(  lite,  p.  376.  Formerly  the  decree 
made  on  default  of  defendant  at 
hearing  was  a  decree  nisi  giving 
the  defendant  a  day  to  show  cause 
against  the  decree  before  it  be- 
came absolute.  It  is  easy  to  see 
why    this    might    be    set    aside    on 


payment  of  costs  before  it  was 
made  absolute;  but  according  to 
present  practice  the  decree  in  such 
cases  is  absolute  in  the  first  in- 
stance. Dan.  Ch.  Pr.  (6th  Am. 
ed.)   p.   978. 

In  Eoberts  v.  Birgess,  20  N.  J. 
Eq.  139  (1869),  a  decree  was  made 
on  default  of  defendant  on  the 
pleadings  simply  without  evidence 
or  hearing  and  the  court  refused 
to  reopen  the  decree,  and  in 
Knight  V.  Young,  2  V.  «&  B.  (Eng. 
Ch.)  184,  the  court  said:  "There 
are  very  few  instances  of  permit- 
ting a  defendant  to  open  a  decree 
made  upon  his  default  at  the  hear- 
ing." See  Chapter  IX,  Pro  Con- 
fesso, ante,  pp.  370  et  seq. 

23.  See  Sec.  407,  post,  p.  649,  in 
regard   to   decrees  against   infants. 

24.  Frank  v.  Bruck,  4  111.  App. 
627  (1879);  Security  Co.  v.  Tar- 
ver,  60  Fed.  660    (1894). 

25.  Hohenadel  v.  Steele,  237  III. 
229  (1908);  Pacific  E.  R.  Co.  v. 
Ketchum,  101  U.  S.  289,  297,  25 
L.  ed.  932  (1879).  Although  ordi- 
narily all  provisions  in  a  decree 
outside  of  the  issue  raised  by  the 
pleadings  are  void,  this  is  not  true 
of  a  consent  decree.  Collins  v. 
Loyal,   56  Ala.  403    (1876);    Nash- 


648 


EQUITY  PRACTICE 


ing  and  conclusive  unless  procured  by  fraud.-°  It  can- 
not be  amended  or  varied  in  any  way  without  the  con- 
sent of  the  parties,-^  nor  can  it  be  reheard  or  appealed 


ville,  etc.,  E.  Co.  v.  U.  S.,  113 
U.  S.  261,  28  L.  ed.  971  (1884).  It 
is  not  a  consent  decree  unless  it  so 
appears  upon  its  face  even  though 
it  was  in  fact  consented  to.  Pat- 
terson V.  Northern  Trust  Co.,  238 
111.  601  (1909);  Bank  v.  DaboU, 
100  Mich.  67  (1894);  or  at  least 
from  the  certificate  of  evidence, 
Crow  V,  Harrison,  248  111.  462 
(1911). 

A  draft  of  a  consent  decree, 
agreed  to  and  signed  out  of  court 
by  the  parties  to  a  cause,  cannot 
be  entered  as  a  consent  decree  if 
when  it  is  offered  for  entry  con- 
sent thereto  is  withdrawn,  and  an 
objection  to  its  entry  is  made  by 
one  of  the  parties  who  signed. 
Herold  v.  Craig,  59  W.  Va.  353 
(1906).  Contra,  Harvey  v.  Croy- 
don, etc..  Authority,  26  Ch.  Div. 
Law  Eep.   249    (1884). 

A  consent  decree  binds  only  the 
consenting  parties.  Dibrell  v. 
Carlisle,  51  Miss.  785  (1875);  Myl- 
lius  V.  Smith,  53  W.  Va.  173 
(1903). 

There  must  be  express  consent. 
It  will  not  be  inferred  because 
the  decree  is  endorsed  "submitted 
to  us."  Gibson  v.  Burgess,  82 
Va.  650  (1886).  Or  from  obedi- 
ence to  the  order.  Hall  v.  Taylor, 
15  W.  Va.  544  (1881).  Or  because 
the  decree  recites  that  the  cause 
came  on  to  be  heard  before  a  spe- 
cial judge  "presiding  by  consent 
of  parties."  Crosby  v.  Morris- 
town,  etc.,  E.  Co.,  42  S.  W.  507 
(Tenn.  Ch.  App.  1897). 

A  consent  decree  made  in  vaca- 
tion is  valid  in   Vermont  when  en- 


titled as  of  the  term.  Sturgis  v. 
Knapp,  38  Vt.  540  (1866);  but  not 
in  West  Virginia.  Gilmer  v.  Baker, 
24  W.  Va.  72  (1884). 

26.  Knobloch  v.  Mueller,  123  111. 
554  (1888);  Eussell  v.  White,  63 
Mich.  409  (1886);  French  v.  Shot- 
well,  5  Johns.  Ch.  (N.  Y.)  555 
(1821);   Finley  v.   Bank   of  U.   S., 

11  Wheat.  304,  6  L.  ed.  480  (1826). 
Thus  an  agreement  to  refer  the 
pending  suit  to  an  arbitrator,  ami 
that  a  judgment  in  the  cause 
should  be  entered  according  to  his 
decision,  will  justify  the  entry  of 
such  judgment  and  it  will  be  bind- 
ing upon  the  parties  as  a  judgment 
entered  by  consent.  Bank  v.  Wi<l- 
ner,  11  Paige  (X.  Y.)  529  (1845). 
A  decree  for  a  sale  made  with  the 
approbation  of  counsel  filed  in 
court  removes  all  preceding  tech- 
nical objections.  Kennedy  v. 
Bank     of     Georgia,    8     How.     586, 

12  L.    ed.    1209    (1850). 

A  final  decree  entered  by  con- 
sent on  a  master's  report  makes 
the  findings  of  fact  conclusive  be- 
tween the  parties.  C.  A.  Briggs 
Co.  V.  National  Wafer  Co.,  102 
N.   E.  87    (Mass.   1913). 

27.  Leitch  v.  Cumpston,  4  Paige 
(N.  Y.)  476  (1834);  Town  of 
Bristol  V.  Bristol  &  Warren  Water 
Works,  25  E.  I.  189  (1903);  Hyde 
V.  Superior  Court,  28  E.  I.  204 
(1904);  McGraw  v.  Traders'  Na- 
tional Bank,  64  W.  Va.  509  (1908). 
Except  where  a  clerical  error  has 
occurred.  Seller  v.  Union  Manu- 
facturing Co.,  50  W.  Va.  208 
(1901).  But  the  court  may  give 
such   further   direction   as   may   be 


DECREES 


649 


from,^^  or  reviewed  upon  a  writ  of  error  or  bill  of  re- 
view.-'-* 

§  407.  Decrees  against  infants.  A  binding  decree  can- 
not be  made  against  an  infant  defendant  without  proof .^" 
So  a  decree  pro  confesso  can  never  be  rendered  against 
an  infant  defendant,^^  and  a  decree  upon  the  answer  of 
non  sum  informatus  by  a  guardian  ad  litem  will  not 
bind  the  infant.^^  So  the  court  will  not  make  a  decree 
against  an  infant  although  his  co-defendant  and  the 
plaintiff  agree  as  to  the  facts,^^  nor  will  it  make  a  decree 
by  consent  without  first  inquiring  whether  it  will  be  for 
the  interest  of  the  infant.^^    By  an  old  and  well  settled 


necessary  to  carry  the  decree  into 
effect  according  to  its  intent. 
Leitch  V.  Cumpston,  4  Paige 
(N.  Y.)  476  (18.i4).  It  may  be 
amended  or  set  aside  by  consent 
of  both  parties.     White  v.  Walker, 

5  Fla.  478  (1854);  Jones  v.  Fayer- 
weather,  46  N.  J.  Eq,  237    (1889). 

28.  Stewart   v.   Forbes,   1   Macn. 

6  G.  (Eng.  Ch.)  137;  Armstrong 
V.  Cooper,  11  111.  540  (1850).  See 
Ch.  XXVIII  "Appeals,"  Sec.  506, 
post,  p  839. 

29.  Webb  v.  Webb,  3  Swanst. 
658  (Eng.  Ch.);  Frank  v.  Bruck, 
4  111.  App.  629  (1879);  Hunter  v. 
Kennedy,  20  W.  Va.  343  (1882). 
See  Ch.  VI  "Bills  not  Original," 
Sec.  146,  ante,  p.  290. 

30.  Florida.  Gibbins  v.  McDer- 
mott,  19  Fla.  852   (1883). 

Illinois.  Hamilton  v.  Gilman, 
12  111.  260  (1850). 

Maine.  McClellan  v.  MeClellan, 
65  Me.  507  (1876);  Wakefield  v. 
Marr,  65  Me.  341  (1876);  Tucker 
V    Bean,  65  Me.  352   (1876). 

Michigan.  Ballentyne  v.  Clark, 
38   Mich.   395    (1878). 

Mississippi.  Ingersoll  v.  Inger- 
soll,  42  Miss.  155,  163   (1868). 


New  Jersey.  Wiley  v.  Morris, 
39  N.  J.  Eq.  98   (1884). 

Except  that  where  the  court 
after  inquiry  sees  fit  to  enter  a 
consent  decree  against  an  infant, 
the  latter  will  be  bound  by  it. 
See  note  34,  post. 

When  the  court  acquires  juris- 
diction and  renders  a  decree  upon 
the  evidence,  the  infant  is  as 
much  bound  by  it  as  an  adult.  Mc- 
Comb  V.  Gilkerson,  101  Va.  406 
(1909).  And  can  only  set  aside 
the  decree  by  the  same  proceed- 
ings and  for  the  same  causes  as 
an  adult.  Teel  v.  Dunnihoo,  221 
111.  471  (1906);  Hurt  v.  Long,  90 
Tenn.  445  (1891);  Harrison  v. 
Walton,  95  Va.  721,  64  Am.  St. 
Rep.  830,  41  L.  R.  A.  703  (1898); 
Lafferty  v.  Lafferty,  42  W.  Va. 
783    (1896). 

31.  See  Ch.  IX,  Pro  Confesso, 
See.  190,  ante,  p.  364. 

32.  Tucker  v.  Bean,  65  Me. .  352 
(1876). 

33.  Wiley  v.  Morris,  39  N.  J. 
Eq.   98    (1884). 

34.  Gooch  V.  Green,  102  111.  507 
(1882);  Milly  v.  Harrison,  7  Cold. 
(Tenn.)     191     (1869);     Morriss    v. 


650 


EQUITY  PRACTICE 


rule  of  general  elianceiy  practice,  in  cases  where  the 
real  estate  of  an  infant  is  to  be  sold  or  conveyed  under 
a  decree  of  the  court,  a  provision  is  inserted  in  the 
decree  giving  the  infant  a  time  (usually  six  months 
after  attaining  his  majority)  to  show  cause  against  the 
decree,  and  he  is  entitled  to  be  summoned  by  subpoena 
for  the  purpose;  ^^  if  he  then  shows  no  cause,  the  decree 


Virginia  Ins.  Co.,  85  Va.  588 
(1888);  Thompson  v.  Maxwell 
Land  Grant,  etc.,  Co.,  168  U.  S. 
451,  42  L.  ed.  538  (1897).  But  if 
such  a  decree  is  rendered,  the  in- 
fant will  be  bound  by  it.  Dan. 
Ch.  Pr.  (6th  Am.  ed.)  974;  Wall. 
V.  Bushby,  1  Bro.  Ch.  484  (Eng. 
Ch.);  Thompson  v.  Maxwell  Land 
Grant,  etc.,  Co.,  168  U.  S.  451,  42 
L.   ed.   538   (1897). 

35.  Delaware.  Lockwood  v. 
Stradley,  1  Del.  Ch.  298,  12  Am. 
Dec.   97    (1825). 

Maine.  McClellan  v.  McClellan, 
65  Me.  507  (1876);  Perry  v.  Perry, 
65  Me.  399   (1876). 

Massachusetts.  Coffin  v.  Heath, 
6  Met.   76   (1843). 

New  Hampshire.  Dow  v.  Jew- 
ell, 21  X.  H.  470   (1850). 

Tennessee.  Simpson  v.  Alex- 
ander, 6  Coldw.  (Tenn.)  619 
(1869)     (infant    defendant    only). 

Virginia.  Tenant  v.  Pattons, 
6  Leigh  (Va.)  196  (1874);  Zirkle 
V.  McCue,  26  Grat.  (Va.)  517 
(1875). 

West  Virginia.  Lafferty  v. 
Lafiferty,  42  W.  Va.  783. 

Contra,  Wadhams  v.  Gay,  73  111. 
415  (1874) ;  Gregory  v.  Lenning,  54 
Md.  51   (1880). 

But  he  can  only  show  the  cause 
existing  at  the  rendition  of  the 
decree,  and  not  such  as  arose  after- 
wards. Lancaster  v.  Barton,  92 
Va.  615  (1896). 


Failure  to  reserve  a  day  to  show 
cause  in  the  decree  does  not  ren- 
der the  decree  void  but  only  erro- 
neous. Doe  V.  Bradley,  6  Sm.  & 
M.    (Miss.)    485    (1846). 

In  some  jurisdictions,  statutes 
allow  an  infant  to  show  cause 
after  majority  without  reserva- 
tion in  the  decree  itself.  Kennedy 
V.  Kennedy,  2  Ala.  571  (1841); 
McLemore  v.  Chicago,  etc.,  R.  Co., 
58  Miss.  514  (1880);  Morris  v. 
Virginia  Ins.  Co.,  85  Va.  588 
(1888). 

An  infant  may  sue  by  his  next 
friend  to  set  aside  a  decree  affect- 
ing his  rights,  notwithstanding  the 
statute  allowing  him  six  months 
after  becoming  of  age  to  show 
cause.  Harrison  v.  Wallton's  Ex- 
ecutor, 95  Va.  721,  64  Am.  St. 
Rep.  830,  41  L.  R.   A.  703    (1898). 

In  Illinois  an  infant  may  dur- 
ing minority  file  an  original  bill 
to  impeach  a  decree  for  fraud  or 
error  appearing  on  its  face  or  after 
majority  within  the  time  during 
which  he  could  prosecute  his  writ 
of  error.  Johnson  v.  Buck,  220 
111.   226    (1906). 

And  in  West  Virginia  he  may 
impeach  a  decree  for  fraud  by 
original  bill  at  any  time  without 
reference  to  the  giving  of  a  day 
to  show  cause.  Plant  v.  Hum- 
phries, 66  W.  Va.  88,  26  L.  R.  A. 
(X.  S.)  558  (1909). 


DECREES 


651 


is  made  absolute  against  liim.^^  This  rule  does  not,  how- 
ever, ajDply  to  infant  trustees,  though  the  trust  results  by 
implication  of  law.^*'*  No  decree  for  the  conveyance  of 
real  estate  will  be  made  against  an  infant  till  he  comes  of 
age.^^ 

§  408.  Decrees  must  follow  pleadings  and  proof.  A 
decree  in  equity  can  grant  only  such  relief  as  is  justified 
by  the  allegations  and  the  evidence.^^  The  court  will 
only  decree  on  the  case  made  by  the  pleadings  even 
though  the  evidence  may  show  a  right  to  a  further  de- 
cree.^^  A  decree  granting  relief  outside  the  issue  raised 
by  the  pleadings  is  a  mere  nullity  and  open  to  collateral 
attack.^*^    A  decree  based  on  allegations  merely  without 


See  Ch.  VI,  "Bills  not  Original," 
Sees.  143  to  152,  ante,  pp.  279  et 
seq. 

36.  Dan.  Ch.  Pr.  (6th  Am.  ed.) 
p.  997,   n.   1. 

36a.  Walsh  v.  Walsh,  116  Mass. 
377  (1874).  Nor  where  title  is  di- 
vested by  the  decree  itself.  Win- 
chester V.  Winchester,  1  Head 
(Tenn.)  460  (1858). 

37.  Perry  v.  Perry,  65  Me.  399 
(1876);  Whitney  v.  Stearns,  11 
Mete.    (Mass.)    319    (1846). 

But  it  is  held  that  this  does  not 
apply  to  infant  trustees  although 
the  trust  results  by  implication  of 
law.  Walsh  v.  Walsh,  116  Mass. 
377    (1874). 

38.  Delaware.  Cloud  v.  White- 
man,  2   Harr.  401    (1837). 

Illinois.  Pinneo  v.  Goodspeed, 
104  111.  184   (1882). 

Maine.  Hare  v.  Mclntyre,  82 
Me.  240  (1890);  Stover  v.  Poole, 
67  Me.  217    (1877). 

Maryland.  Hillery  v.  Hurdle,  6 
Gill    105    (1847). 

Michigan.  Andrus  v.  Scudder, 
120  Mich.  502   (1899). 


New      Jersey,        Marshman      v. 

Conklin,  21  N.  J.  Eq.   546    (1870). 

Pennsylvania.    Luther  v.  Luther, 

216  Pa.    St.    1    (1906). 
Tennessee.      McClung    v.    Cord- 
well,  107  Tenn.  592   (1901). 

Virginia.  Steadman  v.  Handy, 
102   Va.   382    (1904). 

West  Virginia.  Turner  v.  Stew- 
art, 51  W.  Va.  493   (1902). 

United  States.  Gage  v.  Mer- 
cantile Co.,  160  Fed.  425   (1908). 

It  is  sufficient  if  the  decree  sub- 
stantially gives  the  relief  prayed 
for.  Johnson-Maakestad  v.  John- 
son, 44  111.  App.  593   (1891). 

39.  Warner  v.  Mettler,  103  N.  E. 
259  (111,  1913);  Beck  v.  Beck,  43 
N.  J.  Eq.  40  (1887);  Kent's  Adm'r 
V.  Kent's  Adm'r,  82  Va.  205  (1886). 
Relief  must  be  in  accordance  with 
some  one  or  more  allegations  of 
the  bill.     Stover  v.  Poole,  67  Me. 

217  (1876). 

40.  Jones  v.  Davenport,  45  N.  J. 
Eq.  77  (1889);  Elliott  v.  Pell,  1 
Paige   (N.  Y.)   263   (1828). 


652 


EQUITY  PRACTICE 


proof  or  admission  is  subject  to  reversal  on  appeal,  but 
will  bo  good  against  collateral  attack.'*^ 

§  409.  Flexibility  and  completeness  of  decrees.  It  is 
characteristic  of  a  court  of  equity  that  it  may  adapt  its 
decrees  to  all  the  circumstances  and  requirements  of 
any  particular  case,^-  and  it  is  the  right  and  the  duty 
of  the  court  to  adjust  so  far  as  possible  the  rights  of  all 
parties  before  it  and  all  questions  involved,  leaving 
nothing  open  for  future  litigation.^^  Although  it  is  a 
general  rule  that  one  defendant  can  have  no  relief  against 
a  co-defendant  without  a  cross  bill,^^  yet  a  decree  may 
be  made  between  co-defendants  when  the  equities  be- 
tween them  arise  out  of  the  case  as  made  by  the  plead- 
ings and  proof  between  the  plaintiffs  and  defendants.^^ 
So  it  is  held  that  money  found  due  a  third  person,  not  a 


41.  Gibson's  Suits  in  Chancery, 
Sec.  539. 

42.  Reese  v.  Kirk,  29  Ala.  406 
(1856);  Robinson  v.  Clark,  76  I!*Ie. 
493  (1884);  Clark  v.  Hall,  7  Paige 
(N.  Y.)  382  (1839).  Relief  may 
be  had  distributively  in  equity  as 
the  case  may  require.  Brown  v. 
Haven,  12  Me.  164   (1835). 

Where  a  court  of  equity  has  all 
the  matters  involved  and  the  par- 
ties interested  before  it  though  a 
liability  would  fall  on  one  person 
or  property  first,  the  court  will  in 
the  first  instance  place  it  on  the 
person  or  property  ultimately  lia- 
ble thereto.  Bansimer  v.  Fell,  39 
W.  Va.  448    (1894). 

In  a  suit  in  equity  a  decree  may 
be  made  that  each  of  two  wrong- 
doers shall  pay  to  the  plaintiff  the 
amount  due  to  him  by  reason  of 
the  wrongful  act  in  which  they 
both  took  part,  and  in  each  case 
a  payment  by  one  discharges  the 
other.  Gray  v.  Chase,  184  Mass. 
444   (1903). 


43.  Hurtt  v.  Crane,  36  Md.  29 
(1872);  Jones  v.  Davenport,  45 
N.   J.   Eq.   77    (1889). 

44.  Howard  v.  Hopkyns,  2  Atk. 
(Eng.  Ch.)  371;  Brinkerhoflf  v. 
Franklin,  21  N.  J.  Eq.  334  (1871); 
Barker  v.  Belknap,  39  Vt.  173 
(1866);  Veach  v.  Rice,  131  U.  S. 
293,  33  L.  ed.  163   (1888). 

45.  Chamley  v.  Dunsany,  2  Sch. 
&  Lef.  (Ir.  Ch.)  710;  Thurston  v. 
Prentiss,  1  Mich.  193  (1849); 
Shannon  v.  Marselis,  1  N.  J.  Eq. 
413  (1831);  Yates  v.  Stuart's 
Adm'r,  39  W.  Va.  124  (1894); 
Corcoran  v.  Canal  Co.,  94  U.  S. 
741,  24  L.  ed.  190  (1876).  Thus 
a  decree  may  be  made  between  de- 
fendants for  contribution.  Jones 
v.  Grant,  10  Paige  (N.  Y.)  348 
(1843).  But  no  such  relief  can  be 
granted  except  incidentally  to  the 
relief  sought  by  the  bill.  Mount 
v.  Potts,  23  N.  J.  Eq.  188   (1872). 


DECREES 


653 


party  to  the  suit,  may  be  paid  to  liim  by  decree  of  the 
court.^*^ 

§  410.  Purchaser  pendente  lite  bound  by  decree.  One 
who  purchases  pendente  lite  is  bound  by  the  decree 
which  may  be  made  against  the  party  from  whom  he 
takes  his  title,  and  he  need  not  be  made  a  party  to  the 
suit  in  order  to  be  so  bound.^^  The  same  rule  applies 
when  the  purchase  is  made  after  the  decree  but  while  it 
is  still  subject  to  review  or  further  proceedings.*'^*  The 
rule  has  been  extended  to  cover  some  forms  of  personal 
property.*"'' 

§  411.  Frame  of  decrees.  Forms  for  orders  and  decrees 
are  given  in  the  third  volume.  In  most  jurisdictions  no 
part  of  the  pleadings,  the  master's  report,  or  any  jjrior 
proceeding,  need  be  recited  or  stated.*^    Every  order  or 

Virginia.  Sharity  v.  Moyers,  99 
Va.  519   (1901). 

West  Virginia.  White  v.  Perry, 
14  W.  Va.  66   (1878). 

United  States.  Lewers  v.  Atch- 
erly,   222   U.   S.   285    (1911). 

47a.  McCauley  v.  Rogers,  104  111. 
578  (1882);  Smith  v.  Burns,  72 
Miss.  966  (1895);  McPherson  v. 
Housel,  13  N.  J.  Eq.  299  (1861). 

The  rule  applies  to  mortgagees: 
Owing  V.  Gilpatrick,  96  Ala.  421 
(1891);  Youngman  v.  Elmira,  etc., 
R.  Co.,  65  Pa.  278  (1870).  To 
lessees:  Yates  v.  Smith,  11  111.  App. 
459  (1882);  Haven  v.  Adams,  8 
Allen  363  (1864).  To  attaching 
creditors:  Land,  etc.,  Co.  v.  Boyer, 
191  Fed.  552  (1911).  To  purchasers 
at  execution  sales:  Stores  Co.  v. 
Pox,  57  Fla.  505  (1909). 

47b.  See  Land,  etc.,  Co.  v  Boyer, 
191  Fed.  552  (1911),  which  applied 
the  rule  to  the  case  of  a  mortgage 
of  a  locomotive. 

48.  Me.  Eq.  Rule  29;  Mass.  Eq. 
Rule    37;    Pa.   Eq.    Rule   83;    R.   L 


46.  Farwell  v.  Sturges,  58  111. 
App.  462  (1895).  But  see'  Rice, 
etc.,  Co.  V.  Goldberg,  26  111.  App. 
603   (1887). 

47.  Alabama.  Moon  v.  Crowder, 
72   Ala.    79    (1882). 

Florida.  Hayden  v.  Thrasher, 
28  Fla.   162    (1891). 

Illinois.  Norris  v.  He,  152  111. 
190,  43  Am.  St.  Rep.  233  (1894). 

Maine.  Snowman  v.  Harford, 
57  Me.  397   (1869). 

Maryland.  Inloes  v.  Harvey, 
11  Md.  519   (1857). 

Michigan.  Hesselbacher        v. 

Sprague,    104    Mich.    197    (1895). 

Mississippi.  Alliance  Trust  Co. 
v.  Nettleton  Hardwood  Co.,  74 
Miss.  584,  60  Am.  St.  Rep.  531,  36 
L.  R.  A.  155   (1896). 

Pennsylvania.  Diamond        v. 

Lawrence  County,  37  Pa.  353,  78 
Am.  Dec.  429  (1860). 

Rhode  Island.  Brightman  v. 
Brightman,  1  R.  L  112   (1848). 

Tennessee.  American  Exchange 
Bank  v.  Andrews,  12  Heisk.  306 
(1873). 


654 


EQUITY  PRACTICE 


decree  should  bear  date  upon  the  day  on  which  it  is 
filed  and  entered.^'* 

§  412.  Drawing,  filing  and  entering  decrees.  When 
the  court  has  finally  established  and  defined  the  rights 
of  the  parties  in  an  equity  suit  and  indicated  what  relief 
should  be  awarded,  the  counsel  for  the  party  who  is 
entitled  to  a  decree  in  his  favor  should  draw  the  same 
and  file  it  and  in  some  jurisdictions  give  notice.^®     In 


Eq.  Rule  42;  Vt.  Eq.  Eule  32; 
U.   S.   Eq.   Rule   71    (1913). 

The  decree  in  general  chancery- 
practice  consists  of  three  and 
sometimes  four  parts:  1.  The  date 
and  title.  2.  The  recitals.  3.  The 
declaratory  part  which  when  made 
use  of,  generally  precedes  the  or- 
dering part.  4.  The  ordering  part. 
According  to  the  ancient  practice, 
the  recitals  contained  the  sub- 
stance of  the  pleadings  and  the 
evidence.  In  a  few  jurisdictions  in 
this  country  the  decree  must  con- 
tain findings  of  all  material  facts 
necessary  to  sustain  it,  at  least 
where  there  is  no  certificate  of 
evidence.  Bogda  v.  Gloss,  244  111. 
575  (1910);  Water  Co.  v.  Hast- 
ings, 216  Pa.  178  (1907),  cmtra, 
Liebing  v.  Matthews,  216  Fed.  1 
(1914).  The  rules  sometimes  pro- 
vide that  proper  recitals  of  pre- 
vious proceedings  may  be  inserted 
where  it  is  intended  that  the  final 
decree  shall  serve  as  a  record  of 
the  case.  See  R.  I.  Eq.  Rule  42  and 
Mass.  Eq.  Rule  37. 

Not  evidentiary  or  probative 
facts,  but  ultimate  facts  alone,  are 
all  that  is  necessary  to  find  in  any 
decree  to  sustain  it.  Brown  v. 
Peterson,  117  111.  App.  401   (1904). 

In  Maine  no  finding  of  fact  is 
a  necessary  preliminary  to  the 
validity  of  a  decree  in  equity. 
Pierce  v.  Woodbury,  100  Me.  1 
(1905).     But  if  filed,  it  is  subject 


to  modification  until  the  decree  it- 
self is  filed.  McKenney  v.  Wood, 
108  Me.  335   (1911). 

Mere  informalities  do  not  af- 
fect a  decree.  Worcester  City 
Missionary  Society  v.  Memorial 
Church,  186  Mass.  531  (1905); 
Zerbey  v.  Allan,  215  Pa.  St.  383 
(1906);  Johnson  v.  Valley  Tie  Co., 
108  Va.  714  (1908). 

The  maxim  "Id  cerium  est  quod 
certum  reddi  potest"  will  sustain 
a  decree  in  equity  which  refers  to 
record  data  in  the  suit  for  deter- 
mining what  is  otherwise  uncertain 
on  the  face  of  a  decree.  State  v. 
White,  40  Fla.  297  (1898);  Dun- 
lap  V.  B;^-ers,  101  Mich.  109  (1896). 
But  in  Spoor  v.  Tilson,  97  Va.  279 
(1899),  it  was  held  not  sufficient 
for  a  decree  for  money  to  refer 
to  the  bill  for  the  amount  the  de- 
fendant is  required  to  pay  and  the 
date  from  which  interest  is  to  be 
computed. 

The  words  "decreed,"  "re- 
solved," "ordered,"  "judgment 
rendere.d"  are  the  equivalent  of 
the  original  technical  terms  in  a 
decree.  Johnson  v.  Miller,  50  111. 
App.   60    (1892). 

49.  See  Me.  R.  S.,  Chap.  79,  Sec. 
28;  Mass.  Pub.  Laws,  1908,  Ch.  159, 
Sec.  33. 

50.  Me.  Eq.  Rule  28;  Mass.  Eq. 
Rule  37;  Pa.  Eq.  Rule  84;  R.  I. 
Eq.    Rule    42;    Vt.    Eq.    Rule    33. 


DECREES 


655 


some  jurisdictions  tlie  adverse  party  has  a  certain  time 
limit  within  which  he  may  file  objections  to  the  form  of 
the  decree,  and  upon  hearing  the  court  settles  the  final 
draft  and  signs  the  decree.  This  is  filed  with  the  clerk 
and  entered  by  him  upon  the  docket  ^^  together  with  the 
day  of  such  filing  and  entering.  The  decree  then  be- 
comes operative  from  that  day  and  stands  as  the  defi- 
nite judgment  of  the  court,  finally  terminating  the  cause, 
forming  part  of  the  record  and  equivalent  to  enrollment 
under  the  English  chancery  practice.^ ^ 


See  also:  Horn  v.  Horn,  234  HI. 
268  (1908);  Cram  v.  Gilman,  83  Me. 
193  (1891);  Sagery  v.  Bayless,  13 
Sm.  &  M.  (Miss.)  153  (1849).  Vt. 
Eq.  Eule  33  provides  that  no  such 
order  or  decree  in  which  there  are 
erasures  or  interlineations  will  be 
signed  by  the  chancellor  unless  the 
same  are  noted  below  the  order  or 
decree  and  above  the  signature  of 
the  solicitor. 

It  has  been  held  that  a  rule  pro- 
viding that  decrees  shall  be  drawn 
by  the  solicitor  is  merely  for 
court 's  assistance  and  does  not  pre- 
vent the  judge  from  drawing  and 
entering  the  decree  himself.  Rider 
V.  York  Haven  W^ater  and  Power 
Co.,  88  A.  903   (Pa.  1913). 

51.  Me.  Eq.  Rule  28;  Pa.  Eq. 
Rule  84. 

In  some  jurisdictions  a  decree 
need  not  be  signed  by  the  chan- 
cellor, its  entry  on  the  record  by 
the  clerk  giving  it  validity.  Horn 
V    Horn,  234  111.  268   (1908). 

in  Alabama,  decrees  must  be 
rendered  in  writing,  in  term  time 
if  practicable;  but  in  cases 
deemed  by  the  chancellor  difficult, 
he  may  reserve  the  rendition  of 
decree  until  vacation,  and  may 
render  it  at  any  time  before  or 
during  the  next  term.     Code   1907, 


Sec.  3207.  By  agreement  in  writ- 
ing filed  with  the  register  in  va- 
cation, or  by  an  entry  on  the 
minutes  in  term  time,  the  parties 
may  refer  a  cause  to  an  arbitrator 
of  their  selection  for  final  decree. 
Code  1907,  Sec.  3208. 

In  Maine,  Equity  Rule  28  pro- 
vides that  the  justice  who  heard 
the  case  must  settle  and  sign  the 
decree.  McKenney  v.  Wood,  108 
Me.  335   (1911). 

In  Michigan  by  statute  upon 
failure  of  a  judge  to  sign  a  decree 
it  may  be  signed  by  his  successor. 
How.  Ann.  St.,  Sec.   7255. 

52.  In  the  ancient  English  chan- 
cery practice,  a  decree  did  not  be- 
come final,  i.  e.  the  record  of  the 
court,  until  enrolled  on  parchment. 
Dan.  Ch.  Pr.  (6th  Am.  ed.)  1018. 
lu  most  modern  jurisdictions,  how- 
ever, the  decree  is  final  when 
signed  and  filed,  or  when  signed 
and  filed  and  the  term  at  which 
it  was  filed,  or  some  number  of 
days  set  by  statute  has  elapsed 
since  filing. 

Florida.  Decrees  may  be  signed 
when  pronounced  and  recorded  at 
once.     Eq.  Rule  87. 

Illinois.  When  the  term  has 
elapsed  at  which  it  was  ren- 
dered.    Bartak   v.   Isvolt,   261   111: 


656 


EQUITY  PRACTICE 


§  413.  Power  of  judge  to  render  decree  in  vacation. 

Since  courts  can  only  perform  judicial  acts  affecting  the 
rights  of  the  parties  at  the  times  provided  by  law,  it 


279  (1913).  A  decree  may  be  en- 
tered on  the  last  day  of  the  term. 
People  V.  Evans,  104  N.  E.  6-46  (111. 
1914). 

Maine.  When  drawn,  signed 
and  filed.  Gilpatrick  v.  Glidden, 
82  Me.  201,  203   (1889). 

Maryland.  After  thirty  days 
from  date  when  signed  and  filed. 
Code,  Art.  16,  Sec.  177j  Eq.  Kule 
50. 

Michigan.  Enrollment  so  as  to 
make  a  decree  final  consists  of  at- 
taching the  papers  together,  ob- 
taining thereto  the  signature  of 
the  court,  and  filing  them.  How. 
Ann.  St.  (2d  ed.)  Sees.  11981-11982. 
Comp.  Laws,  Sees.  463,  464;  Low 
V.  Mills,  61  Mich.  35   (1886). 

Mississippi.  Enrollment  is  sign- 
ing and  placing  on  the  records. 
Sagory  v.  Bayless,  13  S.  &  M. 
(Miss.)    153    (1849). 

New  HampsMre.  When  the  term 
has  elapsed  at  which  it  was  ren- 
dered. Goodall  V.  Harris,  20  N. 
H.  363   (1850). 

New  Jersey.  Enrollment  does 
not  occur  until  the  expiration  of 
ten  days  after  filing,  unless  the 
form  of  the  decree  has  been  settled 
by  the  chancellor  or  a  vice  chan- 
cellor upon  application,  nor  shall 
the  enrollment  be  signed  by  the 
chancellor  within  such  time  with- 
out special  order  of  court.  Eq. 
Kule  101.  See  also  Fort  Wayne, 
etc.,  Corp.  V.  Franklin,  etc.,  Co.,  58 
N.  J.  E.  543,  aflf.  57  N.  J.  E.  16, 
(1899). 

Vermont.  Decrees  are  not  to  be 
recorded  until  the  expiration  of 
twenty  days  from  date  of  signing 


and  filing.  Pub.  Stat.,  Sec.  1301, 
Eq.  Eule  36. 

United  States.  Decree  becomes 
final  at  expiration  of  term  when 
entered  and  recorded,  if  appeal 
lies;  otherwise  at  end  of  the  next 
term  (as  regards  petition  for  re- 
hearing). Eq.  Rule  69  (1913).  See 
Whiting  V.  Bank,  13  Pet.  6,  10  L. 
ed.  33  (1839);  Robinson  v.  Rud- 
kins,  28  Fed.  8   (C.  C.  1886). 

Vacation  decrees  are  'considered 
enrolled  when  entered  on  the  rec- 
ord. Alabama,  Eq.  Rule  78;  111.  J. 
&  A.,  113030,  Hurd's  Stat.,  Chap. 
37,  Sec.  67  (interlocutory  decrees); 
Miss.  Code,  Sec.  506;  Anderson  v. 
Mclnness,  99  Miss.  823  (1911). 
But  no  enrollment  is  necessary 
after  decree  is  signed  by  judge  and 
filed  in  vacation.  Johnson  v.  John- 
son, 62  So.  706  (Ala.  1913).  In 
Illinois,  when  it  is  stipulated  that 
a  decree  entered  in  vacation  shall 
be  final,  it  takes  effect  as  if  entered 
at  the  preceding  term,  otherwise  a 
vacation  decree  does  not  take  effect 
until  the  end  of  the  next  term.  J. 
&  A.,  113028;  Hurd's  Stat.,  Chap. 
37,  Sec.  65;  Cooper  v.  Gum,  152 
111.  471  (1894). 

In  Gilpatrick  v.  Glidden,  82  Me. 
203  (1889),  the  court  said:  "Un- 
der the  practice  of  the  court  of 
chancery  in  England  and  in  this 
country  wherever  that  practice 
prevails,  the  proceedings  in  a  case 
in  equity  are  not  regarded  as  at  an 
end  until  the  final  decree  of  the 
court  has  been  signed  and  enrolled. 
It  then  becomes  a  matter  of  rec- 
ord, can  be  pleaded  in  bar  or  es- 
toppel,   execution    can    issue    upon 


DECREES 


657 


follows  that  the  judges  of  a  court  cannot  render  decrees 
in  vacation  unless  specially  authorized  by  statute.^^ 
Such  statutes  exist  in  most  jurisdictions.  In  some  states 
a  chancery  case  may  be  taken  under  advisement,  and  a 
decree  rendered  in  vacation.^^  In  others  the  statutory 
provisions  give  to  the  chancellor  authority  in  vacation 
to  make  all  interlocutory  orders  and  decrees  preparatory 
to  the  hearing  of  causes  on  the  merits.^^  In  still  others 
the  chancery  court  is  always  open  for  business,  includ- 


it,  and  there  can  be  no  rehearing 
on  motion  or  petition,  the  only 
remedy  being  by  bill  of  review. 
But  in  this  and  other  states, 
where  the  English  chancery  prac- 
tice does  not  prevail,  the  decrees 
of  the  court  are  not  enrolled.  The 
final  decree,  when  formally  drawn, 
adopted  by  the  court  and  placed 
on  file,  and  judgment  thereon,  be- 
comes equivalent  to  enrollment  un- 
der the  English  practice.  By  ex- 
amination of  the  statute  it  will 
readily  be  seen  that  it  is  there 
contemplated  that  final  decrees  are 
to  be  formally  drawn,  signed,  en- 
tered and  filed.  By  our  system  of 
practice,  where  full  power  is  con- 
ferred on  the  court  to  make  and 
enter  all  orders  and  decrees  at 
such  times  as  the  court  may  deem 
proper,  it  follows  that  such  orders 
and  decrees  become  operative  only 
from  the  time  they  are  thus  en- 
tered of  record.  They  then  be- 
come the  definite  judgment  of  the 
court,  forming  a  part  of  the  record, 
and  equivalent  to  enrollment  under 
the  English  chancery  practice." 

See  also  Chap.  XXVIII,  ''Ap- 
peals," Sec.  510,  post,  p.  848. 

53.  Conklin  v.  Eidgeway,  112 
111.  36,  54  Am.  Dec.  204  (1883); 
Blair  v.  Beading,  99  111.  600,  609 
Whitehouse  E.  P.  Vol.  I — 42 


(1881);  Wingate  v.  Wallis,  5  Sm.  & 
M.  (Miss.)  249  (1845);  Yatter  v. 
Miller,  61  Vt.  147  (1888);  Tyson 
V.  Glaize,  23  Gratt.  (Va.)  799 
(1873);  Eollins  v.  Fischer,  17  W. 
Va.  578  (1880). 

Such  a  decree  is  erroneous  even 
when  entered  by  consent.  Gilman 
V.  Baker,  24  W.  Va.  72   (1884). 

Making  an  order  allowing  an  ap- 
peal and  fixing  the  amount  of  the 
appeal  bond  is  a  judicial  act  to  be 
done  in  term  time.  Hake  v.  Stru- 
bel,  121  111.  321   (1887). 

54.  Ala.  Code,  Sec.  3207,  Eule 
78;  111.  J.  &  A.  H  3028,  Kurd's  Stat., 
Ch.  37,  Sec.  65;  Miss.  Code,  Sec. 
506. 

A  decree  cannot  be  entered  in 
vacation  "as  of"  a  previous  term 
where  the  case  has  not  been  taken 
under  advisement  and  there  has 
been  no  stipulation  that  a  decree 
entered  in  vacation  shall  be  final. 
Cameron  v.  Clinton,  259  111.  599 
(1913). 

55.  Del.  Code  1893,  p.  710,  Eule 
5;  111.,  J.  &  A.  113030,  Hurd 's 
Stat.,  Ch.  37,  Sec.  67;  Pa.  Eule 
1;  Tenn.  Code,  Sec.  6220;  Va.  Code, 
Sec.  3426;  U.  S.  Judicial  Code 
(Act  March  3,  1911,  Chap.  1),  Sec. 
9,  U.  S.  Eq.  rule  1   (1913). 


658 


EQUITY  PRACTICE 


ing  the  making  of  interlocutor}^  and  final  decrees.^^  It 
is  sometimes  provided  that  the  chancellor  may  render 
final  decrees  at  any  time  by  consent  of  parties.^^  After 
a  decree  is  made,  chancellors  have  power  in  some  juris- 
dictions in  vacation  as  well  as  in  term  time  to  make 
such  further  orders  and  to  issue  such  writs  and  process 
as  may  be  necessary  to  carry  the  decree  into  effect.^^ 

§  414.  Correction  of  decrees — Interlocutory.  Inter- 
locutory decrees  may  be  corrected  or  revised  by  the  court 
at  any  time  before  final  decree  except  when  they  have 
been  decided  on  appeal,^^  and  may  be  altered  or  vacated 
at  the  final  hearing  as  justice  may  require.^*^ 


56.  Florida.  Gen.  Stat.  1906,  Ch. 
X,  Sec.  1859;  Rule  2. 

Maine.     R.  S.  (Jh.  79,  Sec.  11. 

Massachusetts.  R.  L.  Chap.  159, 
Sec.    18. 

New  Jersey.  Compiled  Stat. 
1910,  "Chancery,"  Sec.  2. 

Vermont.  Pub.  Stat.  1906,  Sec. 
1239. 

Decrees  or  orders  rendered  by  a 
judge  in  vacation  must  be  entered 
by  the  clerk  on  the  record  or  in 
the  proper  order  book. 

Alabama.     Rule  78. 

Florida.     Rule  3. 

Illinois.  .T.  &  A.  113030;  Kurd's 
Stat.,  Ch.  37,  See.  67. 

Mississippi.     Code  1906,  Sec.  506. 

West  Virginia.  Code  1913,  Sec. 
4557. 

United  States.  Eq.  Rule  3 
(1913). 

Copies  of  orders  or  decrees  en- 
tered in  chambers  are  in  some 
states  served  on  a  party  not  ap- 
pearing and  will  take  effect  only 
from  time  of  service.  Del.  Rule  7. 
See  U.  S.  Eq.  Rule  4   (1913). 

In  others,  the  entry  is  deemed 
sufficient  notice  unless  notice  is 
specially  required.     Florida  Rule  3. 

57.  Alabama.      Code    1907,    Sec. 


3209;  Rule  79  (consent  must  be  in 
writing,  filed  in  the  cause). 

Mississippi.    Code  1906,  Sec.  506. 

Rhode  Island.  General  Laws 
1909,  Ch.  275,  Sec.  11. 

Virginia.  Code  1904,  Sec.  3427. 
(By  consent  entered  of  record  in 
term  time  or  in  vacation,  the  judge 
may  render  decrees  in  vacation 
and  court  may  decree  judgment  in 
vacation  without  consent  when  it 
desires  time  to  consider  of  its  judg- 
ment.) 

58.  Tenn.  Code  1896,  Sec.  6221; 
Va.  Code  1904,  Sec.  3428. 

59.  Gerrish  v.  Black,  109  Mass. 
474  (1872).  Maine  R.  S.  Chap.  79, 
Sec.  39.  For  other  statutory  pro- 
visions relating  to  the  correction 
of  interlocutory  decrees  see  Fried- 
man V.  Rehm,  43  Fla.  330  (1901); 
McAllister  v.  Plant,  49  Miss.  628 
(1873). 

An  application  to  set  aside  an 
interlocutory  decree  is  addressed  to 
the  sound  discretion  of  the  court. 
Schmidt  v.  Braley,  112  111.  48 
(1884). 

60.  Jeffery  v.  Robbins,  167  111. 
375  (1897);  Waring  v.  Turton,  44 
Md.  535  (1876);  Park  v.  Johnson, 
7  Allen  (Mass.)  378  (1863);  Davis 


DECREES 


659 


§  415.  Correction  of  final  decree  before  entry.  At  any 
time  before  entry  of  a  final  decree  (i.  e.  before  enroll- 
ment in  the  English  practice),  after  it  has  been  pro- 
nounced by  the  court  orally  or  in  writing  or  a  draft  has 
been  made  by  the  prevailing  party,  it  may  be  corrected 
by  the  parties  or  the  court  as  provided  by  chancery 
rules  ®i  and  the  court  may  alter  and  amend  or  even  dis- 
regard all  that  it  has  declared  in  its  oral  announcement 
or  minutes.^2 

§  416.  Rehearing  on  interlocutory  decrees  and  final  de- 
crees before  entry.  The  general  rule  is  that  an  inter- 
locutory decree  ^^  or  final  decree  before  entry  ^^  cannot 
be  altered  or  vacated  in  a  material  point  on  motion  or 


V,  Eoberts,  Sm.  &  M.  Ch.  (Miss.) 
543  (1843);  Kimball  v.  Alcorn,  45 
Miss.  145  (1871);  Wright  v. 
Strother,  76  Va.  857  (1882);  Eepass 
V.  Moore,  96  Va.  147  (1898). 

61.  See  Sec.  412,  ante,  p.  654. 

62.  Horn  v.  Horn,  234  111.  268 
(1908);  Gerrish  v.  Black,  109  Mass. 
474  (1872);  Witters  v.  Sowles,  32 
Fed.  130  (1887). 

In  some  states  it  is  provided  by 
statute  or  chancery  rule  that  cler- 
ical mistakes  in  decrees  or  decretal 
orders,  or  errors  arising  from  any 
accidental  slip  or  omission,  may  at 
any  time  before  an  actual  enroll- 
ment thereof  be  corrected  by  order 
of  the  court  upon  petition,  without 
the  form  or  expense  of  a  rehear- 
ing. Md.  Eq.  Eule  51;  R.  I.  Eq. 
Rule  41;  U.  S.  Eq.  Rule  72  (1913); 
see  Va.  Code,  Sec.  3451. 

In  Florida,  Eq.  Rule  87  provides 
for  the  correction  of  clerical  er- 
rors before  entry  of  decree.  In 
Pennsylvania,  Eq.  Rule  90,  no  time 
limit  is  made. 

In  Cram  v.  Oilman,  83  Me.  193 
(1891)  the  court  says,  "The  mere 
draft   of   a   decree,   however,   even 


though  agreed  upon  by  counsel  and 
filed,  is  not  the  decree  of  the  court 
until  the  draft  is  authenticated  and 
enrolled,  or  in  the  words  of  our 
statute,  'signed,  entered  and 
filed.'  "  When  a  justice  who  has 
heard  a  cause  in  equity  dies  or 
otherwise  becomes  incapacitated 
before  signing  the  decree  it  is  not 
competent  for  another  justice  to 
settle  and  sign  the  decree,  but  a 
new  hearing  must  be  ordered.  Mc- 
Kenney  v.  Wood,  108  Me.  335 
(1911);  Me.  Eq.  Rule  28. 

63.  Hyman  v.  Smith,  10  W.  A^a. 
298  (1877);  H.  B.  M'f'g  Co.  v. 
Warner,   28  Fed.  577    (1886). 

64.  Doggett  V.  Emerson,  1 
Woodb.  &  M.  (U.  S.)  1  (1845);  Mc- 
Closkey  v.  DuBois,  9  Fed.  38 
(1881).  In  Doggett  v.  Emerson, 
the  court  said:  "Such  changes 
however,  after  the  opinion  and  de- 
cree have  been  formed  and  com- 
municated to  the  parties,  would  be 
altogether  destructive  of  judicial 
consistency  and  firmness,  as  well 
as  public  policy,  unless  made  upon 
good  and  urgent  cause  on  a  full  re- 
hearing by  both  parties." 


660 


EQUITY  PRACTICE 


petition  without  a  rehearing.'''^  A  rehearing,  strictly 
speaking,  is  a  new  hearing  and  a  new  consideration  of 
the  case  by  the  court  in  which  the  suit  was  originally 
heard  and  upon  the  pleadings  and  evidence  already  in 
the  case.''*'  But  the  court  will  in  its  discretion  allow  evi- 
dence to  be  introduced  at  a  rehearing  which  could  not 
by  the  use  of  due  diligence  have  been  discovered  and 
used  before."^  A  rehearing  rests  in  the  discretion  of  the 
court ''^  and  is  not  a  subject  of  appeal."''  A  rehearing 
will  not  be  granted  to  enable  a  party  to  present  cumula- 
tive testimony;  '"^  or  to  contradict  the  witnesses  examined 
by  the  adverse  party;  ''^  or  for  error  of  judgment  by  coun- 
sel ;'^2  or  where  the  party  applying  has  been  guilty  of 
laches.''^ 


65.  Finlayson  v.  Lipscomb,  15 
Fla.  558  (1876);  Hurd  v.  Bewley,  1 
Heisk.  (Tenn.)  524  (1870);  Fulton 
V,  Messenger,  61  W.  Va.  477  (1907). 

66.  Eead  v.  Patterson,  44  N.  J. 
Eq.  211,  218  (1888).  It  must  be 
based  on  grounds  existing  at  the 
time  the  decree  was  pronounced 
and  not  upon  circumstances  arising 
subsequently.      Bowyer    v.    Bright, 

13  Price  316   (Eng.  Ch.). 

67.  Robertson  v.  Maclin,  4  Hayw. 
(Tenn.)  53  (1817);  Young  v.  Hen- 
derson, 4  Hayw.  (Tenn.)  189 
(1817);  Armstead  v.  Bailey,  83  Va. 
242   (1887). 

68.  Zimmer  v.  Miller,  64  Md. 
296  (1885);  Barnes  v.  Kent  Circuit 
Judge,  97  Mich.  212  (1893);  N.  J. 
Zinc   Co.  V.  N.  J.  Franklinite   Co., 

14  N.  J.  Eq.  308  (1862);  Hodges  v. 
N.  E.  Screw  Co.,  3  R.  I.  9  (1853); 
Buffington  v.  Harvey,  95  XJ.  S.  99, 
24  L.  ed.  381    (1877). 

69.  Read  v.  Patterson,  44  N.  J. 
Eq.  211,   218   (1888). 

70.  Dennett  v.  Dennett,  44  N.  H. 
531  (1863);  McDowell  v.  Perrine, 
36  N.  J.  Eq.  632  (1883). 


71.  Dunham  v.  Winans,  2  Paige 
(N.  Y.)   24  (1830). 

72.  Robinson  x.  Sampson,  26  Me. 
11  (1846);  McDowell  v.  Perrine,  36 
N.  J.  Eq.  632  (1882).  In  Robin- 
son V.  Sampson,  it  was  held  that  a 
misapprehension  of  the  effect  of 
evidence  or  mistake  of  law  as  to 
its  admissibility  by  party  or  coun- 
sel is  not  sufficient  ground  for  re- 
hearing after  final  decree. 

73.  Robinson  v.  Sampson,  26  Me. 
11  (1846);  Norton  v.  Walsh,  49 
Fed.  769  (1892).  A  petition  for 
rehearing  after  final  decree  will  not 
be  allowed  for  the  purjjose  of  in- 
troducing evidence  touching  the 
merits,  which  was  fully  known  be- 
fore publication  of  *  proofs,  and 
which  might  have  been  introduced 
at  hearing.  Robinson  v.  Sampson, 
supra. 

Nor  will  it  be  allowed  unless 
some  special  reason  sufficient  in 
law  and  true  in  fact  be  shown 
therefor  other  than  the  desire  of 
the  defeated  party  to  try  the  case 
over  again.  Richardson  v.  Hatch, 
68  N.  J.  Eq.  788  (1905). 


DECREES 


661 


A  petition  for  a  rehearing  should  contain  the  special 
matter  or  cause  on  which  such  rehearing  is  applied  for, 
and  the  facts  stated  should  be  verified  by  the  oath  of 
the  party  or  some  other  person.'^^  In  some  jurisdictions 
the  petition  must  be  signed  by  counsel, ^^  in  others  it 
must  be  accompanied  by  a  certificate  of  two  counsel  that 
they  have  examined  the  case  and  that  in  their  opinion 
the  decree  is  erroneous  in  the  particulars  mentioned.'^^ 

In  some  states  the  rehearing  may  be  granted  at  any  time 
in  the  discretion  of  the  court;  '^'^  in  others,  within  a  certain 
time  after  the  granting  of  the  decree,  but  before  enroll- 
ment.'^^   Where  a  decree  has  been  executed  it  is  some- 


74.  Del.  Eq.  Rule  56;  Fla.  Eq. 
Rule  90;  Me.  Eq.  Rule  39  (provid- 
ing that  a  petition  for  a  rehearing 
must  be  verified  like  bills  and 
answers);  Md.  Eq.  Rule  52;  Mich. 
Eq.  Rule  25;  N.  J.  Eq.  Rule  143; 
Pa.  Eq.  Rule  91;  Vt.  Eq.  Rule  36; 
U.  S.  Eq.  Rule  69  (1913).  As  to 
procedure  on  petition  for  rehearing 
for  newly  discovered  evidence  after 
interlocutory  decree  under  U.  S.  Eq. 
Rule  69  (1913)  see  Sheeler  v. 
Alexander,  211  Ted.  544  (1913). 

75.  ria.  Eq.  Rule  90;  Md.  Eq. 
Rule  52  (signed  by  petitioner  or 
counsel);  N.  J.  Eq.  Rule  143 
(signed  by  two  counsel  except  in 
cases  submitted  without  argument 
where  signature  of  one  counsel  is 
sufficient);  Pa.  Eq.  Rule  91;  U.  S. 
Eq.  Rule  69    (1913). 

76.  Mich.  Eq.  Rule  25;  Vt.  Eq. 
Rule  36;  Cotton  v.  Parker,  Sm.  & 
M.  Ch.  (Miss.)  125  (1844). 

77.  Pa.  Eq.  Rule  91.  In  Ala- 
bama a  party  can  apply  for  a  re- 
hearing of  a  decree  rendered  in  va- 
cation by  the  second  day  of  the 
next  ensuing  term.     Rule  78. 

78.  In  New  Jersey  it  is  provided 
by  Equity  Rule  145  that  if  a  peti- 


tion for  rehearing  shall  be  pre- 
sented to  the  chancellor  before  a 
final  decree  shall  have  been  settled 
upon  application,  or  within  ten 
days  after  filing  any  final  decree 
not  settled  on  application,  and  a 
caveat  against  enrolling  and  sign- 
ing the  same  shall  be  filed  with 
the  clerk  of  court,  such  final  de- 
cree shall  not  be  enrolled  and 
signed  or  any  process  issued 
thereon  until  the  said  application 
shall  be  finally  disposed  of.  Rule 
146  allows  a  rehearing  of  course  in 
all  cases  submitted  by  the  consent 
of  parties  without  argument  if  ap- 
plication is  made  within  ten  days 
after  the  decree  is  made. 

In  Florida,  Eq,  Rule  90  provides 
that  no  rehearing  shall  be  granted 
unless  the  petition  is  filed  within 
thirty  days  after  granting  of  the 
decree  if  an  appeal  lies  to  the 
Supreme  Court.  But  if  no  appeal 
lies,  the  petition  may  be  admitted 
at  any  time  within  six  months 
within  the  discretion  of  the  court. 

U.  S.  Eq.  Rule  69  (1913)  pro- 
vides that  no  hearing  shall  be 
granted  after  the  term  at  which  the 
final  decree  of  the  court  shall  have 


662 


EQUITY  PRACTICE 


times  provided  that  parties  who  have  acted  on  the  faith 
of  such  decree  shall  not  be  prejudiced  by  having  such 
decree  reversed  or  varied."'' 

§  417.  Correction  of  finaJ  decrees  after  entry.  After  a 
final  decree  has  been  signed,  filed  and  entered,  the  gen- 
eral rule  is  that  errors  involving  the  merits  of  the  case 
cannot  be  corrected  by  rehearing  on  motion  or  petition, 
the  only  remedy  being  by  bill  of  review,  or  petition  for 
review  under  statutory'  provisions.^    Mere  clerical  errors 


been  entered  and  recorded  if  an 
appeal  lies  to  the  Circuit  Court  of 
Appeals  or  the  Supreme  Court.  But 
if  no  appeal  lies,  the  petition  may- 
be admitted  at  any  time  before  the 
end  of  the  next  term  of  the  court 
in  the  discretion  of  the  court. 

79.  Md.  Eq.  Rule  52;  Pa.  Eq. 
Rule  91.  In  Maine  if  the  decree 
has  not  been  executed,  the  justice 
of  the  court  may  suspend  its  ex- 
ecution until  the  further  order  of 
court,  by  a  writ  of  supersedeas  or 
order,  on  the  petitioner's  filing  a 
bond  -with  sufiicient  sureties,  in 
such  sum  and  to  be  approved  in 
such  manner  as  he  may  direct,  con- 
ditioned to  perform  the  original 
decree,  in  case  it  shall  not  be  ma- 
terially modified  or  reversed,  and 
pay  all  intermediate  damages  and 
costs.     Me.  Eq.  Rule  39. 

In  Florida  a  petition  for  a  re- 
hearing presented  within  30  days 
from  pronouncing  of  decree  stays 
proceedings  for  thirty  days  from 
such  presentation  but  no  longer  un- 
less bond  is  given.  Gen.  Stat. 
Sec.  1904. 

In  Michigan  if  a  rehearing  is 
granted,  the  petitioner  shall  lose 
the  benefit  thereof  unless  he  shall 
■within  ten  days  thereafter  deposit 
with  the  register  $50.00  to  answer 
the  costs  and   damages  of  the   ad- 


verse party  if  the  decree  or  order 
shall  not  be  materially  varied. 
Mich.  Eq.   Rule  25. 

1.  Illinois.  Crane  v.  Stafford, 
217  111.  21  (1905). 

Maine.  Gilpatrick  v.  Glidden, 
82  Me.  203  (1889). 

Massachusetts.  Engine  Co.  v. 
Engine  Co.,  203  Mass.  410  (1909); 
Thompson  v.  Goulding,  5  Allen  81 
(1862). 

Michigan.  Reynolds  v.  Reynolds, 
115  Mich.  378  (1897). 

West  Virginia.  Fulton  v.  ^les- 
senger,  61  W.  Va.  477  (1907); 
Snider  v.  Middle  States  Co.,  52  W. 
Va.  655  (1902). 

The  general  rule  is  that  there  can 
be  no  rehearing  on  motion  or  peti- 
tion after  enrollment.  Del.  Eq.  Rule 
56;  Md.  Eq.  Rule  52;  Gerrish  v. 
Black,  109  Mass.  477  (1872).  In 
the  English  practice  and  some 
American  jurisdictions  this  is  after 
the  end  of  the  term,  so  that  in 
those  jurisdictions  it  is  held  that 
the  court  has  power  to  modify  _a 
decree  which  has  been  signed  and 
entered,  at  any  time  during  the 
term  when  rendered  and  not  there- 
after. 

Delaware.  Cochran  v.  Cowper,  2 
Del.  Ch.  727  (1837). 

Illinois.  Tosetti  Brewing  Co.  v. 
Kochler,  200   111.   369    (1902). 


DECREES 


663 


however  may  be  amended  at  any  time,  even  after  entry, 
when  the  existence  of  the  error  is  shown  by  the  record 
or  by  satisfactory  evidence.^  The  court  will  also  on 
petition  amend  its  decree  even  after  entry  and  in  a 
material  point,  when  the  amendment  is  necessary  to  give 


Maryland.  Williams  v.  Banks, 
19  Md.   524   (1862). 

Mississippi.  Patterson  v.  Josse- 
lyn,  43  Miss.  373  (1870);  Wiggle  v. 
Ower,  45  Miss.  691  (1871);  Com- 
mercial Bank  v.  Lewis,  13  Sm.  & 
M.  226  (1849). 

New  Hampshire.  Cummings  v. 
Parker,   63   N.   H.   198    (1884). 

Tennessee.  State  v.  Bank  of 
Commerce,  96  Tenn.  591  (1896); 
Abbott  V.  Fogg,  1  Heisk.  742 
(1870). 

Virginia.  Parker  v.  Logan,  82 
Va.  376   (1886). 

West  Virginia.  Barbour  v. 
Tompkins,  58  W.  Va.  572,  3  L.  E. 
A.  (N.  S.)  715  (1905);  Matthews  v. 
Tyree,  53  W.  Va.  298   (1903). 

United  States.  Henderson  v. 
Carbondale  Coal,  etc.,  Co.,  140  U. 
S.  25,  32  L.  ed.  332  (1890);  Bron- 
son  V.  Schulten,  104  U.  S.  410,  26 
L.  ed.  797   (1881). 

It  is  competent  for  another 
judge  presiding  at  the  same  term  to 
permit  the  amendment  of  a  decree 
to  correct  an  error  of  computation. 
Palmer  v.  Harris,  100  HI.  276 
(1881). 

In  Maine  and  Massachusetts, 
where  signing  and  entering  are 
equivalent  to  enrollment,  and  there 
are  no  terms  of  court  in  equity  pro- 
ceedings, the  court's  power  to  mod- 
ify the  decree  ceases  after  the  de- 
cree is  entered.  Parsons  v.  Stev- 
ens, 107  Me.  65  (1912);  Lakin  v. 
Lawrence,  195  Mass.  27  (1907); 
Thompson  v.  Goulding,  5  Allen  81 
(1862). 


In  Alabama,  Eule  83  provides 
that  "a  final  decree  shall  not  be 
called  in  question  before  the  court 
rendering  it  after  the  adjournment 
of  the  term  when  rendered  except 
by  bill  of  review,  and  shall  never 
be  impeached  by  original  bill,  un- 
less on  the  ground  of  fraud." 

The  rule  that  a  final  decree  can- 
not after  enrollment  be  called  in 
question  by  petition  does  not  apply 
where  a  decree  in  a  cause  not 
heard  on  the  merits  was  entered  by 
mistake  or  surprise.  Foxwell  v. 
Foxwell,  118  Md.  471   (1912). 

In  such  a  case  an  original  bill  to 
impeach  the  decree  may  be  brought. 
Bailey  v.  Merchants'  Ins.  Co.,  86 
Atl.  328  (Me.  1913).  See  Ch.  VI, 
"Bills  Not  Original,"  Sec.  143, 
ante,  p.  279;  Sees.  150-151,  <inte,  p. 
294. 

2.  Illinois.  Davenport  v.  Kirk- 
land,  156  111.  169  (1895). 

Maryland.  Primrose  v.  Wright, 
102  Md.   105    (1905). 

New  Jersey.  Day  v.  Argus 
Printing  Co.,  47  N.  J.  Eq.  594 
(1890). 

Tennessee.  Spencer  v.  Arm- 
strong, 12  Heisk.  707   (1874). 

Vermont.  Porter  v.  Vaughan,  22 
Vt.    269    (1850). 

In  West  Virginia,  a  clerical  er- 
ror in  entering  a  consent  decree 
may  be  corrected  by  the  original 
draft  of  the  decree  furnished  the 
clerk  by  the  court,  on  motion  at 
any  time  under  the  provisions  of 
the  Code.  Manion  v.  Fahy,  11  W. 
Va.   484    (1877),. 


664 


EQUITY  PRACTICE 


full  expression  to  its  judgment,  and  is  matter  which 
would  have  been  incorporated  in  the  decree  when  made, 
if  attention  had  been  called  to  it,  but  which  was  omitted 
through  inadvertence."  The  court  likewise  has  the  power 
to  make  an  order  subsequent  to  the  enrollment  of  a 
decree,  modifying  the  time  ^  or  manner  ^  of  its  enforce- 
ment, provided  such  order  does  not  create  any  different 
liabilities  from  those  imposed  by  the  original  decree." 
§  418.  Enforcement  of  decrees — Kinds  of  process.  In 
general  it  may  be  stated  that  courts  of  equity  have  the 
power  to  issue  all  processes  that  may  be  necessary  to 


3.  Pfeaff  V.  Jones,  50  Md.  263 
(1879);  Oliver  Finnie  Co.  v.  Boden- 
heimer,  77  Miss.  415  (1900);  Jar- 
man  V.  Wiswall,  24  X.  J.  Eq.  267 
(1873);  Lynde  v.  Lynde,  54  N.  J, 
Eq.   473    (1896). 

4.  Cadotte  v.  Cadotte,  120  Mich. 
667  (1898);  Lawrence  v.  Stagg,  10 
R.  I.  581  (1874);  Bound  v.  S.  C. 
Ry.  Co.,  55  Fed.  186  (1893). 

Execution  of  a  decree  may  under 
certain  circumstances  be  suspended 
by  the  chancellor. 

Alabama.  Sewall  v.  Hoffman, 
157  Ala.  196  (1908). 

New  Jersey.  Land  Co.  v.  Lou- 
denslager,  60  N.  J.  Eq.  403  (1899). 

Tennessee,  hi  re  Chadwell,  7 
Heisk.  630  (1872). 

West  Virginia.  Smith  v.  Mc- 
Lain,  11  W.   Va.  654    (1877). 

United  States.  Maas  v.  Lons- 
torf,  166  Fed.  41   (1908). 

In  Maas  v.  Lonstorf,  supra,  the 
court  held  that  where  a  cause  is 
heard  on  the  merits  and  the  rights 
and  equities  of  a  party  are  ad- 
judged execution  of  any  part  of  a 
decree  whereby  property  may  be 
sold,  title  transferred  or  money 
paid  over  to  one  of  the  parties 
should  be  withheld  until  the  entire 


litigation  is  determined  so  that  the 
entire  case  may  be  reviewed  on  a 
single  appeal. 

One  not  a  party  may  obtain  stay 
of  execution  under  proper  circum- 
stances. Wright  V.  Phillips,  56 
Ala.  69  (1876). 

If  a  decree  is  satisfied  execution 
may  be  arrested  on  motion.  Moh'- 
neaux  v.  Marsh,  Fed.  Cas.  No. 
9,703,  1  Woods  452  (C.  C.  1871). 

5.  Mootry  v.  Grayson,  104  Fed. 
613   (1900). 

6.  Walker  v.  Courier  Co.,  9  Til. 
App.  418  (1881).  Provisions  in 
final  decrees  authorizing  either 
jiarty  to  appeal  to  the  court  for 
further  directions  necessary  to  ef- 
fectuate the  decree  or  protect  the 
rights  of  either  party,  do  not  au- 
thorize the  striking  out  of  mate- 
rial words  in  such  decree  deliber- 
ately placed  there  by  the  court 
after  due  consideration.  Eureka 
Fire  Hose  Co.  v.  Eureka  Rubber 
Mfg.  Co.,  72  N.  J.  Eq.  555  (1907). 
An  erroneous  alteration  of  an  en- 
rolled decree  may  be  corrected  on 
appeal  or  by  bill  of  review.  Saun- 
ders v.  Gregory,  3  Heisk.  (Tenn.) 
567   (1871). 


DECREES 


665 


carry  their  decrees  into  actual  execution/    Such  processes 
inchide  all  those  which  are  peculiar  to  courts  of  equity,^ 


7.  Florida.     Eq.  Rules  6,  7,  8. 
Illinois.     Whalen  v.  Billings,  104 

111.  App.  281   (1902). 

Massachusetts.  Grew  v.  Breed, 
12  Met.  363,  370,  371   (1847). 

New  Jersey.  Aspinwall  v.  Aspin- 
wall,  53  N.  J.  Eq.  684  (1845);  N.  J. 
Eq.  Rules  133-137,  220. 

Pennsylvania.  Eq.  Rules  86  and 
87. 

United  States.  Eq.  Rule  7 
(1913). 

See  also  the  statutes  of  the  dif- 
ferent states  giving  the  courts 
power  to  issue  all  writs  and 
processes  necessary  for  the  further- 
ance of  justice,  or  the  execution  of 
the  laws;  e.  g.,  Me.  R.  S.,  Ch.  79, 
Sec.  5. 

By  statute  in  Rhode  Island  no 
process  for  the  execution  of  a  final 
decree  shall  issue  until  the  expira- 
tion of  thirty  days  after  entry 
thereof,  unless  appeal  waived  by 
writing  or  by  entry  on  docket.  G. 
L.,  Ch.  289,  Sec.  38. 

In  Massachusetts  the  same  rule 
applies  except  that  the  time  limit 
is  twenty  days  and  the  justice  may 
award  process  for  execution  not- 
withstanding an  appeal,  if  he 
deems  the  appeal  groundless  and 
intended  for  delay.  R.  L.,  Ch.  159, 
Sec.  34,  as  amended. 

8.  Originally  the  only  way  to 
enforce  a  decree  in  equity  was  by 
process  of  contempt  against  the 
person  of  the  defendant.  Dan.  Ch. 
Pr.  (6th  Am.  ed.),  p.  1032.  On 
this  he  was  imprisoned  until  he 
performed  the  terms  of  the  decree. 
The  first  step  necessary,  according 
to  the  ancient  chancery  practice, 
was  a  writ  of  execution,  so  called, 
reciting    the    decree    and    ordering 


the  defendant  to  obey  it.  This  was 
later  done  away  with,  the  decree 
itself  being  held  a  sufficient  order 
of  obedience.  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  p.  1043.  Then  if  the  de- 
fendant failed  to  obey  the  decree, 
the  plantiff  was  entitled  and  still 
is  entitled,  under  the  general  chan- 
cery practice,  to  a  writ  of  attach- 
ment ordering  the  officer  to  take 
the  defendant  and  bring  him  be- 
fore the  court  to  answer  for  his 
contempt  in  case  of  his  disobedi- 
ence. Dan.  Ch.  Pr  (6th  Am.  ed.), 
p.  1032.  If  however  the  defendant 
still  persisted  in  his  contempt  and 
remained  in  prison  rather  than 
obey,  general  chancery  practice 
provided  the  writ  of  sequestration, 
which  was  originally  to  seize  the 
defendant 's  personal  property  and 
the  rents  and  profits  of  his  real  es- 
tate till  the  defendant  should  clear 
himself  of  his  contempt.  Subse- 
quently it  became  the  practice  to 
apply  the  money  received  by  the 
sequestration  in  satisfaction  of  the 
sum  decreed  to  be  paid.  Dan.  Ch. 
Pr.  (6th  Am.  ed.),  p.  1032.  The 
process  of  sequestration  is  a  writ 
or  commission  directed  to  certain 
persons,  usually  four,  named  by  the 
plaintiff,  empowering  them  to  take 
possession  of  the  property  in  ques- 
tion. Sequestrators  are  officers  of 
the  court  and  their  duties  and  lia- 
bilities are  much  the  same  as  those 
of  receivers.  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  p.  1050;  Hayes  v.  Hayes, 
4  Del.  Ch.  20  (1866);  Keighler  v. 
Ward,  8  Md.  254  (1855);  Grew  v. 
Breed,  12  Mete.  (Mass.)  363,  46  Am. 
Dec.  687  (1847);  Manning  v.  Mer- 
cantile Securities  Co.,  242  111.  584 
(1909);  Dean  v.  Boyd,  86  Miss.  204 


666 


EQUITY  PRACTICE 


and  also,  by  statute  in  many  states,  all  writs  of  execu- 
tion and  writs  of  possession  of  real  estate  in  use  in  the 
common  law  courts.'-'  The  processes  actually  used  in  prac- 
tice however  for  the  enforcement  of  decrees  are  on  the 
equity  side,  the  writ  of  attachment  (against  the  body), 


(1905);  National  Docks,  etc.,  R. 
Co.  V.  Pa.  R.  Co.,  54  N.  J.  Eq.  167 
(1896). 

Another  process  of  very  much 
the  same  nature  as  the  writ  of  se- 
questration, employed  both  in 
equity  and  at  law  to  enforce  de- 
crees against  corporations,  was  the 
writ  of  distringas,  directed  to  an 
officer,  commanding  him  to  distrain 
the  corporation  of  its  goods  and 
chattels  until  it  complied  with  the 
terms  of  the  decree.  1  Bouv.  Law 
Diet.  548.  This  writ  however  is 
now  almost  entirely  obsolete  and 
the  writs  of  attachment  and  se- 
questration are  also  seldom  used 
today;  nevertheless  they  all  may 
still  be  resorted  to  by  a  court  of 
general  chancery  powers  when  nec- 
essary or  desirable.  Scott  v.  The 
Jailer,  1  Grant's  Cas.  (Pa.)  237 
(1855) ;  Hall  v.  Dana,  2  Aik.  (Vt.) 
381   (1827). 

In  Jones  v.  Boston  Mill  Corp.,  4 
Pick.  (Mass.)  510  (1827),  the  court 
said:  "There  can  be  no  defect  of 
power  to  carry  into  effect  any  de- 
cree of  this  court  upon  any  subject 
within  its  jurisdiction,  as  given  by 
the  statute  which  first  extended 
the  equity  power  of  that  court  be- 
yond the  subject  of  mortgages. 
And  this  answers  one  of  the  argu- 
ments in  support  of  the  demurrer, 
which  urged  the  incompetency  of 
the  court  to  enforce  its  decree 
against  corporations,  on  account  of 
its  inability  to  use  such  compulsory 
process  as  courts   of  chancery  em- 


ploy in  like  cases  in  England.  If 
a  distringas,  sequestration  or  other 
form  of  process,  should  become 
necessary  to  the  due  and  complete 
execution  of  a  decree  against  a  cor- 
poration, this  court  is  authorized 
by  the  statute  (giving  general 
chancery  powers)  to  devise  and  is- 
sue such  process." 

In  Manning  v.  Securities  Co.,  242 
111.  584  (1909),  it  was  held  that 
the  office  of  a  writ  of  sequestra- 
tion in  equity  practice  is  to  fur- 
nish a  remedy  by  which  property  is 
taken  possession  of  by  a  court  of 
chancery  in  order  to  enforce  obe- 
dience to  a  decree,  and  that  while 
the  writ  has  gone  almost  out  of 
use  since  the  courts  of  chancery 
have  power  to  issue  executions 
against  real  estate  to  enforce  the 
payment  of  chancery  decrees,  it 
has  not  been  abolished  or  pro- 
hibited and  may  be  resorted  to 
whenever   it   is   deemed   necessary. 

9.  Maine  R.  S.,  Chap.  79,  Sec. 
34;  Hall  v.  Dana,  2  Aik.  (Vt.)  381 
(1827). 

It  is  provided  in  Alabama  that 
writs  from  the  court  of  chancery 
for  the  collection  of  money  or  to 
obtain  the  possession  of  lands  or 
personal  property  may  be  made  re- 
turnable on  the  first  Monday  of  a 
month,  to  be  specified  in  the  writ; 
all  other  process,  as  the  chancellor 
or  register  may  direct,  unless  the 
return  is  fixed  by  law.  Alabama 
Code  of  1907,  Sec.  3218. 


DECREES 


667 


the  writ  of  assistance  (not  often  used),  and  the  bill  to 
enforce  a  decree.  The  court  also  has  in  certain  cases 
the  power,  it  seems,  to  vest  and  divest  title  where  the 
court  has  jurisdiction  of  the  res  without  the  person,  by 
appointing  a  master  or  other  officer  to  make  the  necessary 
conveyance.  ^'^  On  the  common  law  side  the  processes 
in  use  are  the  writ  of  possession,  the  ordinary  common 
law  execution,  and  the  action  of  debt  on  the  decree  where 
the  latter  is  for  the  payment  of  money.     By  some  one 


10.  Du  Puy  V.  Standard  Mineral 
Co.,  88  Me.  202  (1895).  In  this 
case  the  court  declared  that  hav- 
ing jurisdiction  of  the  res,  it  had 
the  power  to  order  a  master  or 
other  person  to  make  the  neces- 
sary conveyance  by  sale  or  other 
apt  method, — regardless  of  any 
statute  expressly  or  impliedly  per- 
mitting it.  See  Ch.  XXV,  "Reme- 
dies," post,  p.  705.  But  see  Wilson 
V.  Martin-Wilson  Co.,  151  Mass. 
515  (1890),  where  the  court  after 
holding  that  under  the  Mass.  Stat, 
of  1884,  Ch,  285,  Sec.  1,  a  court  of 
equity  may  order  a  conveyance  of 
a  debtor's  property,  upon  his  re- 
fusal to  convey  it,  by  a  master  or 
other  person  appointed  for  that 
purpose,  whenever  it  is  deemed  nec- 
essary or  proper  in  order  to  ap- 
ply it  to  the  payment  of  a  debt, 
conformably  to  the  statute,  de- 
clared that,  "it  is  undoubtedly 
true  .  .  .  that  as  a  general 
rule,  when  a  transfer  of  property 
is  necessary,  the  court  cannot  or- 
der a  conveyance  of  it  by  a  person 
other  than  the  owner,  except  un- 
der the  express  or  implied  author- 
ity of  a  statute. ' '  For  an  example 
of  a  special  statute  of  this  kind 
see  Maine  R.  S.,  Chap.  113,  Sec. 
8-12,  which  provides  that  where  a 
party  who  has   contracted  to   con- 


vey or  purchase  real  estate,  dies, 
his  executors,  administrators,  heirs 
or  devisees  may  be  compelled  in 
equity  to  execute  a  conveyance 
which  shall  pass  the  estate  as  fully 
as  if  made  by  the  contractor. 

In  some  jurisdiction  it  is  pro- 
vided also  by  statute  that  courts 
of  equity  are  empowered  to  vest 
and  divest  title  by  force  of  the 
decree  itself  without  more.  Wad- 
hams  V.  Gay,  73  111.  415  (1874); 
Price  V.  Sisson,  13  N.  J.  Eq.  168 
(1860).  See  Ch.  XXV,  "Reme- 
dies," Sec.  437,  post,  p.  701.  The 
general  rule  is  however  that  in  the 
absence  of  such  statute  the  court 
has  no  such  power.  Wood  v.  War- 
ner, 15  N.  J.  Eq.  81  (1862); 
Mitchell  v.  Bunch,  2  Paige  (N.  Y.) 
606  (1831);  Gay  v.  Parpart,  106 
U.  S.  679  (1882);  Hart  v.  San- 
som,  110  U.  S.  151  (1883).  U.  S. 
Eq.  Rule  8  (1913)  now  provides 
that  if  a  mandatory  order,  injunc- 
tion, or  decree  for  specific  perform- 
ance of  any  act  or  contract  be  not 
complied  with,  the  court  may  order 
the  act  done  by  some  other  person 
appointed  by  the  court. 

See  Tennant  v.  Fretts,  67  W.  Va. 
569,  29  L.  R.  A.  (N.  S.)  625  (1910) 
as  to  power  of  equity  court  to 
make  a  decree  in  rem  in  absence 
of  statute. 


668  EQUITY  PRACTICE 

of  these  methods  the  court  may  enforce  its  decrees  under 
all  circumstances  which  may  arise.  The  bill  in  equity 
to  enforce  a  decree  has  already  been  discussed  but  the 
other  processes  require  further  consideration. 

§  419.  Equity  process — Writ  of  attachment.  The  writ 
of  attachment  in  chancery  practice  is  practically  the 
same  as  the  capias  against  the  body  in  common  law  prac- 
ticed^ The  writ  is  directed  to  the  sheriffs  of  the  counties 
or  their  deputies,  commanding  them  to  attach  the  body 
of  the  defendant  or  other  person  and  have  him  before 
the  court  at  such  a  time  and  place  to  answer  for  an 
alleged  contem^Dt  therein  set  forth,  such  as  a  refusal 
to  perform  the  terms  of  the  decree  or  otherwise  as  the 
case  may  be.  Whenever  the  writ  is  employed  under 
the  rules  of  general  chancery  practice,  it  is  not  a  bailable 
process.^- 

§  420.  — The  writ  of  assistance.  A  writ  of  assistance 
is  the  process  used  by  a  court  of  equity  to  put  a  party, 
receiver,  sequestrator,  or  other  person  into  possession 
of  property  to  which  he  is  entitled  either  by  a  decree  or 
by   an  interlocutoiy   order. ^^     Instead   of   sending  the 

11.  Hurd's  111.  stats.,  Chap.  22,  p.  1062;  Sharp  v.  Carter,  3  P.  Wms. 
Sec.  47,  J.  &  A.  11927;  Warfield,  (Eng.  Ch.)  375;  Long  v.  Morris,  58 
Pratt-Howell  Co.  v.  Williamson,  So.  274  (Ala.  1912) ;  Kerr  v.  Braw- 
233  111.  487;  Me.  R.  S.,  Ch.  79,  Sec.  ley,  193  111.  205  (1901);  Oliver  v. 
36  (1908);  Haggerty  v.  Badkin,  72  Caton,  2  Md.  Ch.  297  (1847);  Gard- 
N.  J.  Eq.  473  (1907);  Ex  parte  ner  v.  Duncan,  61  So.  545  (Miss. 
Mylius,  61  W.  A'a.  405,  10  L.  R.  A.  1913);  Jones  v.  Hooper,  50  Miss. 
(N.  S.)   1098  (1907).  510   (1874);  Pa.  Eq.  Rule  87;  R.  I. 

12.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  Eq.  Rule  4;  Payne  v.  Baxter,  2 
p.  1046.  Tenn.    Ch.    518    (1876);    U.    S.    Eq. 

It  is  however  sometimes  provided  Rule  9  (1913). 
l)y  statute  that  the  party  arrested  In  Clay  v.  Hamlin,  199  111.  370, 

may  give  bond  for  his  appearance  93  Am.  St.  Rep.  146  (1902),  it  was 

at  the  time  and  place  named,  but  held  that  a  court  could  only  put  a 

if  he  then  fails  to  appear  or  other-  party   into   possession   by    writ    of 

wise    becomes    guilty   of   contempt  assistance  where  it  has  given  title 

a   second  time,  he  will  not   be   al-  to  the  party  by  its  own  decree,  but 

lowed  to  give  bail.     See  Me.  R.  S.,  if    the    decree    only    removes    the 

Ch.  79,  Sec.  36.  cloud  from  plaintiff's  existing  title 

13.  Dan.   Ch.   Pr.    (6th   Am.  ed.),  upon    the    ground    of    fraud,    the 


DECREES 


669 


parties  to  a  court  of  law  to  recover  such  possession, 
courts  of  equity  have  from  the  earliest  times  exercised 
the  right  to  issue  a  writ  of  assistance  in  suits  for  the 
redemption  or  foreclosure  of  mortgages  and  in  suits 
brought  for  the  purpose  of  determining  the  rights  of 
litigants  to  the  title  or  possession  of  real  estate,  after  a 
decree  declaring  such  rights. ^^  The  most  familiar 
instance  of  the  use  of  this  writ  is  when  land  has  been 
sold  under  a  decree  foreclosing  a  mortgage,  in  order  to 
put  the  purchaser  ^^  or  his  grantee  ^^  in  possession.    The 


plaintiff    must    pursue    his    remedy 
at  law  to  obtain  the  possession. 

On  the  same  reasoning,  it  seems 
that  the  writ  will  not  issue  in  the 
case  of  strict  foreclosure  as  no  con- 
veyance of  the  title  is  decreed,  it 
being  already  vested  in  the  mort- 
gagee. Schenck  v.  Conover,  13  N. 
J.  Eq.  224,  78  Am,  Dec.  95  (1860). 

14.  Roberdeau  v.  Rous,  1  Atk. 
(Eng.  Ch.)  543;  Harding  v.  Fuller, 
141  111.  308  (1892);  Ketchum  v. 
Robinson,  48  Mich.  618  (1882); 
Jones  v.  Hooper,  50  Miss.  510 
(1874);  Buffum's  Case,  13  N.  H.  14 
(1842);  Beatty  v.  De  Forest,  27 
N.  J.  Eq.  483  (1875);  Terrell  v. 
Allison,  21  Wall.  (U.  S.)  289,  22 
L.  ed.  634  (1874). 

15.  Oliver  v.  Caton,  2  Md.  Ch. 
297  (1847);  Chadwick  v.  Beach  Co., 
42  N.  J.  Eq.  602,  604  (1887);  Van 
Hook  V.  Throckmorton,  8  Paige 
(N.  Y.)  33  (1839);  Terrell  v.  Al- 
lison, 21  Wall.  (U.  S.)  289,  22  L.  ed. 
634  (1874).  Even  though  such  pur- 
chaser is  a  stranger  to  the  record. 
McLane  v.  Piaggio,  24  Fla.  71,  97 
(1888);  Lambert  v.  Livingston,  131 
111.  161  (1890);  Griswold  v.  Sim- 
mons, 50  Miss.  123   (1874). 

The  writ  of  assistance  is  not  con- 
fined to  foreclosure  sales  alone.  It 
has    been    granted   in    the   case   of 


sales  of  land  on  partition,  Keil  v. 
West,  21  Fla.  508  (1885);  or  on 
bill  to  enforce  vendor's  lien,  Gris- 
wold V.  Simmcns,  50  Miss.  123 
(1874);  and  in  proceedings  to  di- 
vest defendant 's  title,  Irvine  v. 
McRee,  5  Humph.  (Tenn.)  554,  42 
Am.  Dec.  468  (1845);  or  to  estab- 
lish plaintiff's  title  under  Burnt 
Records  Act.  Harding  v.  Fuller, 
141  111.  308  (1892).  And  see  Pier- 
pont  V.  Osmun,  118  Mich.  472 
(1898)  in  regard  to  the  issue  of 
writs  of  assistance  for  the  posses- 
sion of  land  the  title  to  which  has 
been  obtained  under  and  in  pursu- 
ance of  any  tax  sale. 

16.  Ketchum  v.  Robinson,  48 
Mich.  618  (1882);  Gibson  v.  Mar- 
shall, 64  Miss.  72  (1886);  Farmers' 
Loan,  etc.,  Co.  v.  Chicago,  etc.,  R. 
Co.  44  Fed.  653  (1890).  See  also 
Ekings  V.  Murray,  29  N.  J.  Eq.  388 
(1878),  where  the  writ  was  issued 
in  favor  of  an  assignee  of  a  pur- 
chaser of  lands  sold  on  execution, 
and  McLane.  v.  Piaggio,  24  Fla.  71 
(1888),  where  it  was  held  that  the 
purchaser  may  invoke  the  writ  in 
aid  of  his  grantee. 

In  Farmers'  Loan,  etc.,  Co.  v. 
Chicago,  etc.,  R.  Co.,  dnte,  it  was 
held  that  the  assignee's  right  to 
the   writ   was    derived   from   U.   S. 


670 


EQUITY  PKACTICE 


writ  will  issue  only  against  parties  to  the  suit  or  their 
representatives,  or  those  who  came  into  possession  under 
either  of  the  parties  while  the  suit  was  pending.^^ 

The  issuance  of  the  writ  of  assistance  is  usually  said 
to  rest  in  the  sound  discretion  of  the  court.  It  is  only 
employed  when  the  right  is  clear  and  beyond  dispute,  ^^ 


Equity  Rule  10  (now  rule  11)  pro- 
viding that  every  person  not  a 
party  to  a  cause,  in  whose  favor 
an  order  has  been  made,  shall  be 
enabled  to  enforce  obedience  to 
such  order  by  the  same  process  as 
if  he  were  a  party  to  the  cause.  In 
this  case  the  possession  was  or- 
dered by  the  court  to  be  turned 
over  to  the  assignee  of  the  pur- 
chaser. 

17.  Alabama.  Wiley  v.  Carlisle, 
93  Ala.  237  (1890). 

Florida.  Gorton  v.  Paine,  18  Fla. 
117  (1881). 

Illinois.  Kessinger  v.  Whittaker, 
82  111.  22  (1876)  (purchaser  after 
decree);  Ricketts  v.  Chicago  Per- 
manent Bldg.  &  Loan  Association, 
67  111.  App.  71  (1896);  Heffron  v. 
Gage,  44  111.  App.  147  (1891). 

Maryland.  Oliver  v.  Caton,  2  Md. 
Ch.  297  (1847). 

Mississippi.  Gardner  v.  Duncan, 
61  So.  545  (Miss.  1913);  Jones  v. 
Hooper,  50  Miss.  510  (1874). 

New  Jersey.  Blauvelt  v.  Smith, 
22  N.  J.  Eq.  31  (1871). 

New  York.  Boynton  v.  Jackway, 
10  Paige  307  (1843). 

United  States.  Howard  v.  Mil- 
waukee, etc.,  R.  Co.,  101  U.  S.  849 
(1879);  Terrell  v.  Allison,  21  Wall. 
289  (1874);  Comer  v.  Felton,  61 
Fed.   731    (1894). 

The  writ  may  issue  ' '  not  only 
as  against  the  defendant,  but 
against  any  party  in  possession  un- 
der him,  or  by  title  not  superior  to 


his.  .  .  .  The  exercise  of  the  power 
rests  in  the  sound  discretion  of  the 
court.  It  will  never  be  exercised 
in  a  case  of  doubt,  nor  under  color 
of  its  exercise  will  a  question  of 
legal  title  be  tiied  or  decided." 
Schenck  v.  Conover,  13  N.  J.  Eq. 
220,  227  (1860),  cited  with  ap- 
proval in  Strong  v.  Smith,  68  N.  J. 
Eq.  686  (1905).  See  also  Land  Co. 
V.  R.  Co.,  147  Mich.  627  (1907). 

The  writ  will  not  issue  against 
persons  in  possession  before  suit 
who  were  not  made  parties.  Wiley 
V.  Carlisle,  93  Ala.  237  (1890); 
Gorton  v.  Paine,  18  Fla.  117  (1881) ; 
Gilcrest  v.  Magill,  37  111.  300 
(1865);  Oliver  v.  Caton,  2  Md.  Ch. 
297  (1847).  Or  against  one  who 
has  acquired  a  new  and  independ- 
ent right  to  the  property  even 
though  a  party  to  foreclosure  pro- 
ceedings. Church  V.  Davis,  70  N.  J. 
Eq.  577  (1905).  Or  against  any 
whose  rights  have  not  been  deter- 
mined by  the  judgment  or  decree. 
Howard  v.  Bond,  42  Mich.  131 
(1879). 

18.  Hooper  v.  Yonge,  69  Ala.  484 
(1881);  Flowers  v.  Brown,  21  111. 
270  (1859);  Ramsdell  v.  Maxwell, 
32  Mich.  285  (1875);  Church  v. 
Davis,  70  N.  J.  Eq.  577  (1907)'; 
Van  Mueter  v.  Borden,  25  N.  J.  Eq. 
414  (1874);  Blauvelt  v.  Smith,  22 
N.  .L  Eq.  32  (1871). 

On  an  application  for  the  writ, 
the  decree  on  which  it  was  based 
mav  be  shown  to  be  void  for  want 


DECREES 


671 


when  it  usually  issues  as  a  matter  of  course.^'^  The 
proper  method  of  procedure  in  obtaining  the  writ  in 
modern  practice  is  to  file  a  petition  ^"  setting  forth  the 
facts,  viz.:  the  sale  and  purchase  under  the  decree,  the 
execution  of  the  conveyance,  the  confirmation  of  the  sale, 
the  payment  of  the  money,  and  the  demand  of  posses- 
sion,— and  praying  that  the  writ  may  issue.^^    Notice  of 


of  jurisdiction.  Cigler  v.  Keinath, 
167  111.  App.  65  (1912);  Peters  v. 
Young,  122  Mich.  484  (1899). 

A  legal  or  equitable  title  will  not 
be  tried  on  an  application  for  the 
writ.  Cigler  v.  Keinath,  167  111. 
App.  65  (1912) ;  Land  Co.  v.  R.  Co., 
147  Mich.  627  (1907);  Strong  v. 
Smith,  68  N.  J.  Eq.  686  (1905). 

The  mere  commencement  of  an 
action  at  law  to  recover  possession 
will  not  bar  the  issuance  of  a  writ 
of  assistance  by  the  equity  court. 
Keil  V.  West,  21  Fla.  508  (1885); 
Lancaster  v.  Snow,  184  111.  534 
(1900). 

The  right  to  the  writ  may  be 
lost  by  laches.  Hooper  v.  Yonge, 
69  Ala.  484  (1881);  Planters'  Bank 
V.  Fowlkes,  4  Sneed  (Tenn.)  461 
(1875). 

In  the  Federal  courts  the  writ  is 
issued  by  the  clerk.  U.  S.  Eq. 
Rule  9  (1913). 

In  Illinois,  at  least,  the  writ  may 
be  issued  by  a  judge  in  vacation. 
Kessinger  v.  Whittaker,  82  111.  22 
(1876),  and  see  Sec.  413,  ante,  p. 
656,  in  regard  to  power  of  judges 
to  issue  writs  and  processes  in  va- 
cation. 

19.  Baker  v.  Pierson,  5  Mich.  456 
(1858);  Gardner  v.  Duncan,  61  So. 
545  (Miss.  1913);  Beatty  v.  De  For- 
est, 27  N.  J.  Eq.  483   (1875). 

20.  Creighton  v.  Paine,  2  Ala. 
158  (1841);  Ketchum  v.  Robinson, 
48    Mich.    618    (1882);    Frazier    v. 


Beatty,  25  N.  J.  Eq.  343  (1874); 
Comer  v.  Felton,  61  Fed.  731 
(1894). 

In  Dorr  v.  Root,  104  111.  App.  417 
(1902),  it  was  held  that  a  petition 
was  not  necessary  where  the  de- 
fendant had  notice  of  what  was 
sought. 

21.  Jones  v.  Hooper,  50  Miss.  510 
(1874). 

In  Alabama  the  writ  is  issued 
upon  affidavit  showing  due  service 
of  the  decree  or  order  of  court 
sought  to  be  enforced  and  that  it 
has  not  been  obeyed.  Hooper  v. 
Yonge,  69  Ala.  484  (1881). 

In  Keil  v.  West,  21  Fla.  508 
(1885)  the  petition  alleged  that  a 
deed  has  been  made  to  the  plain- 
tiff, that  the  defendant  was  in  pos- 
session and  that  he  refused  to  de- 
liver possession. 

In  Michigan  it  is  sufficient  to 
make  affidavit  that  the  plaintiff 
had  shown  the  defendant  the  mas- 
ter 's  deed  and  certified  copy  of  the 
decree  confirming  the  sale  and  that 
he  had  demanded  possession  and 
that  it  had  been  refused.  Hart  v. 
Lindsey,  Walk.  (Mich.)  144  (1843). 

In  Griswold  v.  Simmons,  50 
Miss.  123  (1874)  the  writ  was  ap- 
plied for  in  the  petition  for  con- 
firmation of  the  commissioner's 
sale  and  it  was  held  that  the  peti- 
tion could  ask  that  "the  writ 
issue  if  necessary. ' ' 

In  the  Federal  courts  all  that  is 


672 


EQUITY  PRACTICE 


the  application  must  be  given.-^  The  writ  is  executed 
in  the  same  manner  as  the  writ  of  possession  in  an  action 
of  ejectment. ^^ 

§  421.  Common  law  process — Decree  for  payment  of 
money.  The  two  forms  of  common  law  procedure  which 
may  be  employed  for  the  enforcement  of  a  decree  are 
an  action  of  debt  on  the  decree,^^  or  an  ordinary  common 


necessary  is  an  affidavit  of  a  de- 
mand and  refusal  to  obey  the  de- 
cree or  order.  Eq.  Rule  9  (1913). 
By  the  ancient  chancery  practice, 
as  stated  in  note  to  1  Brown  Ch. 
Rep.  330  (1783),  the  following 
steps  were  necessary  in  applying 
for  a  writ  of  assistance. 

1.  Service  of  writ  of  execution 
of  the  decree;  an  affidavit  of  it 
and  of  the  party's  refusal. 

2.  Attachment  issued  thereon, 
but  not  to  be  executed. 

3.  Injunction  granted  on  such  at- 
tachment as  of  course. 

4.  Writ  of  assistance  directed  to 
the  sheriff  to  deliver  possession 
after  affidavit  of  personal  service 
of  injunction  and  of  disobedience 
to  it. 

This  practice  seems  to  be  still 
followed  in  Illinois,  O  'Brian  v. 
Fry,  82  111.  87  (1876);  except  that 
where  a  decree  of  foreclosure  con- 
tains an  order  that  possession  be 
delivered  to  the  purchaser  no  in- 
junction need  be  issued.  Kissen- 
ger  V.  Whittaker,  82  111.  25  (1876). 

Where  the  writ  is  sought  in  an 
appealed  case,  the  application 
should  be  made  to  the  lower  court 
and  not  to  the  court  of  appeal. 
Ryerson  v.  Eldred,  18  Mich.  195 
(1869);  Harney  v.  Morton,  39  Miss. 
508   (1860). 

It  is  improper  to  grant  the  writ 
without  proper  evidence  of  a  re- 
fusal to  give  up  possession  on  re- 


quest.    Howard  v.  Bond,  42  Mich. 
131  (1879). 

If  a  writ  is  improperly  issued  or 
executed,  it  may  be  set  aside  on 
petition.  Wiley  v.  Carlisle,  93  Ala. 
237  (1890). 

22.  Wiley  v.  Carlisle,  93  Ala.  237 
(1890);  McLane  v.  Piaggio,  24  Fla. 
71  (1888);  O'Brien  v.  Fry,  82  111. 
87  (1876);  Benhard  v.  Darrow, 
Walk.  (Mich.),  519  (1845);  Blau- 
velt  V.  Smith,  22  N.  J.  Eq.  31 
(1871). 

No  notice,  however,  is  necessary 
to  the  parties  of  record,  where  the 
w'rit  issues  as  of  course  in  order  to 
execute  the  decree.  Gardner  v. 
Duncan,  61  So.  545  (Miss.  1913). 

23.  In  ejectment,  the  writ  of 
habere  facias  possessionem  is  used. 
In  executing  the  writ,  the  sheriff 
may,  if  required,  take  with  him  the 
posse  comitatus,  and  is  justified  in 
breaking  open  doors,  if  necessary. 
But  if  peaceably  yielded,  the  deliv- 
ery of  a  twig  or  like  symbol  is 
sufficient. 

A  M'rit  of  assistance  is  equivalent 
to  the  writ  of  habere  facias  posses- 
sionetn  at  law.  Gardner  v.  Duncan, 
61  So.  545   (Miss.  1913). 

24.  This  doctrine  is  now  firmly 
established  by  the  great  weight  of 
authority  both  in  England  and  this 
country. 

England.  Sadler  v.  Robins,  1 
Campbell  253  (1805);  Henley  v. 
Soper,  8  Barn.  &  Cres.   16   (1828); 


DECREES 


673 


Henderson  v.  Henderson,  6  Ad.  & 
El.  N.  S.  288  (1844). 

Alabama.  Green  v.  Foley,  2 
Stew.  &  Port.  441  (1832). 

IlUnois.  Dow  v.  Blake,  148  111. 
76,  39  Am.  St.  E.  156  (1893);  Gov- 
ernor V.  Bowman,  44  111.  499 
(1867);  Warren  v.  McCarthy,  25  111. 
83  (1860). 

Maine.  McKim  v.  Odom,  12  Me. 
94  (1835). 

New  Jersey.  Mut.  Fire  Ins.  Co. 
V.  Newton,  50  N.  J.  L.  571   (1888). 

Pennsylvania.  Evans  v.  Tatem, 
9  Serg.  &  Eawle,  252  (1823). 

Bhode  Island.  Wagener  v. 
Latham,  26  E.  I.  27,  65  L.  E.  A, 
816   (1904). 

Tennessee.  Hunt  v.  Lyle,  6  Yerg. 
412  (1834);  Kelley  v.  Hooper,  3 
Yerg.  395   (1832). 

Vermont.  Downer  v.  Dana,  22 
Vt.  337  (1850). 

United  States.  Hopkins  v.  Lee,  6 
Wheat.  109  (1821). 

An  action  of  debt  on  a  judgment 
may  be  brought  in  one  state  on  a 
decree  for  alimony  in  another  state 
where  a  decree  is  for  a  fixed  sum. 
Lynde  v.  Lynde,  181  U.  S.  183,  45 
L.  ed.  810  (1900).  It  will  lie  on  a 
decree  for  the  payment  of  alimony 
at  stated  intervals,  but  for  only 
the  amount  due  at  the  time  the 
action  is  brought.  Wagener  v. 
Latham,  26  E.  I.  27,  65  L.  E.  A. 
816    (1904). 

The    following   cases   are    contra: 

England.  Carpenter  v.  Thornton, 
3  B.  &  Aid.  52  (1824),  distinguished 
by  Henley  v.  Soper,  8  Barn  &  Cres. 
16  (1828),  and  superseded  by  later 
English  cases;  John  v.  Bradshaw, 
cited  in  Cas.  Temp.  Talb,  223 
(1661);  Darston  v.  Oxford,  3  P. 
Wms.  401  n.  f.  (1661).  These  two 
cases  it  will  be  seen  are  very  old 
and  held  merely  that  a  decree  of  a 
Whitehouse  E,  P,  Vol.  1—43 


court  of  equity  could  not  be 
pleaded  in  bar  to  an  action  at  law, 
and  must  be  regarded  as  overruled 
by  later  English  cases. 

New  Jersey.  Van  Buskirk  v. 
Mulock,  18  N.  J.  E.  184  (1840), 
overruled  by  Mutual  Fire  Ins.  Co. 
V.  Newton,  50  N.  J.  L.  571,  573-5 
(1888). 

United  States.  Hugh  v.  Higgs, 
8  Wheat.  697  (1823),  overruled  by 
Pennington  v.  Gibson,  16  How.  65 
(1853). 

There  is  a  distinction  made  in 
some  of  the  decisions  between  de- 
crees of  another  state  or  foreign 
country  and  decrees  of  a  court  of 
equity  in  the  same  state.  In  the 
latter  case  it  has  been  held  in  sev- 
eral decisions  that  an  action  of 
debt  would  not  lie  since  a  court  of 
equity  has  ample  powers  to  enforce 
its  own  decrees  in  such  case.  Hen- 
ley V.  Soper,  8  Barn.  &  Cres.  16 
(1828);  Carpenter  v.  Thornton,  3 
B.  &  Aid.  52  (1824);  Eichardson  v. 
Jones,  3  Gill  &  Johns.  (Md.)  163 
(1831);  Boyle  v.  Sehindel,  52  Md. 
1  (1879).  This  distinction  is  also 
recognized  with  approval  in  the 
opinion  of  the  court  in  Pennington 
V.  Gibson,  16  How.  (U.  S.)  79 
(1853).  But  the  rule  is  also  broadly 
stated  in  the  same  opinion  that  "in 
every  instance  in  which  an  action 
of  debt  can  be  maintained  upon  a 
judgment,  at  law  for  a  sum  of 
money  awarded  by  such  judgment, 
the  like  action  can  be  maintained 
upon  a  decree  in  equity  which  is 
for  an  ascertained  and  specific 
amount  and  nothing  more."  It 
would  seem  therefore  on  principle 
that  since  an  action  of  debt  can 
be  brought  on  a  judgment  at  law 
in  the  same  state  it  should  be  al- 
lowed also  in  equity,  and  the  fact 
that  the  judgment  at  law  might  be 


674 


EQUITY  PRACTICE 


law  execution,-"^  when  the  decree  is  for  the  payment  of 
money.  Although  failure  to  perform  such  a  decree  con- 
stitutes contempt  just  as  the  failure  to  perform  any  other 
decree  in  equity,  and  such  decrees  may  be  enforced  by 
process  of  attachment  against  the  person  according  to 
general  chancery  practice,  yet  ordinarily  it  is  the  custom 
of  the  courts,  when  the  decree  is  for  the  payment  of 
money,  to  insert  an  order  in  the  decree  for  execution  to 
issue  for  the  required  amount  and  leave  the  plaintiff  to 
the  methods  provided  by  statute  for  enforcing  satisfac- 
tion of  his  execution  as  at  law,  thus  following  the  spirit 
of  the  statutes  abolishing  imprisonment  for  debt.^*'    This 


enforced  readily  by  common  law 
process  has  never  been  held  ground 
for  refusing  to  allow  a  new  action 
thereon.  See  in  support  of  this, 
Thrall  v.  Waller,  13  Vt.  231  (1841), 
where  an  action  en  a  decree  of  the 
same  state  was  expressly  allowed; 
and  Governor  v.  Bowman,  44  111. 
499  (1867),  where  it  was  allowed 
without  comment.  In  Thrall  v. 
Waller,  the  court  said:  "I  make 
no  distinction  between  decrees  of 
courts  of  equity  in  our  own  state 
and  the  other  states.  If  there  be 
any  difference  it  should  be  in  favor 
of  those  of  our  own  state,  but  there 
is  none." 

25.  "A  court  of  chancery  has 
power  to  enforce  its  decrees  by 
lawful  methods  and  an  execution 
is  a  lawful  method  of  enforcing 
the  payment  of  money. ' '  Durbin 
V.  Durbin,  71  111.  App.  51  (1897). 
See  also  Fla.  Eq.  Rule  7;  Mass.  Eq. 
Eule  37;  Pa.  Eq.  Rule  88;  R.  I.  Eq. 
Rule  3;  Hall  v.  Dana,  2  Aik.  (Ver.) 
381  (1827);  Hall  v.  MacGregor,  65 
W.  Va.  74  (1907);  U.  S.  Eq.  Rule 
8   (1913). 

In  Illinois,  by  statute,  J.  &  A. 
t  924,  a  decree  for  money  is  a  lien 


on  the  lands  and  tenements  of  the 
party  against  whom  it  is  entered 
to  the  same  extent  and  under  the 
same  limitations  as  a  judgment  at 
law. 

In  Alabama,  such  decrees  are  not 
liens  but  executions  issued  upon 
them  "are  liens  upon  real  and  per- 
sonal property  subject  to  execution, 
from  their  delivery  or  filing  for 
record  in  the  same  manner  .  .  . 
as  in  courts  of  law."  Code,  See. 
3210. 

An  execution  will  not  issue  to 
enforce  a  decree  ordering  the  pay- 
ment of  money  into  court  rather 
than  directly  to  the  plaintiff. 
United  Lines  Tel.  Co.  v.  Stevens, 
67  Md.  156-  (1887). 

26.  Dinet  v.  People,  73  HI.  183, 
186  (1874),  (unless  defendant  wil- 
fully refused);  Struckmeyer  v. 
People,  133  111.  App.  336  (1898); 
Bcott  v.  The  Jailer,  1  Grant's  Cas. 
(Pa.)  237,  239  (1855);  Pierce's  Ap- 
peal, 103  Pa.  27  (1883);  Nelson  v. 
Hill,  89  Fed.  477   (1898). 

Contra.  Ex  parie  Walker,  25  Ala. 
81  (1854);  Jastram  v.  McAustan, 
29  R.  I.  390  (1909). 


DECREES  675 

rule,  however,  does  not  apply  to  cases  where  the  court  has 
jurisdiction  over  a  fund  or  where  the  fund  is  the  subject 
of  the  suit  and  is  in  the  possession  of  a  party  subject  to 
the  control  of  the  court,  or  where  the  person  in  control 
of  a  trust  fund  converts  it  to  his  own  use.  In  such  cases 
the  decree  is  not  considered  as  a  debt  within  the  statutes 
forbidding  imprisonment  for  debt,  and  the  failure  to  pay 
is  treated  as  a  criminal  contempt,  punishable  by  sum- 
mary process.^^* 

Execution  will  not  be  issued  by  a  clerk  as  a  matter  of 
course  on  a  decree  for  the  payment  of  money  unless  the 
decree  contains  an  express  order  for  such  execution  to 
issue.  Where  such  an  order  has  been  omitted  in  the 
decree  and  the  defendant  has  failed  to  pay  the  money, 
it  seems  that  the  decree  may  be  modified  on  application 
and  an  order  inserted  for  execution  to  issue.^''' 

§  422.  Contempt  defined.  It  is  a  principle  of  the  com- 
mon law  that  any  court  has  inherent  authority  to  punish 
for  contempt,   and  this  power  is  often  expressly  con- 

26a.    Illinois.    People  v.  Zimmer,  that   the   imprisonment   would   not 
238  111.  607  (1909).  tend  to   accomplish  the   result   de- 
Massachusetts.            Cartwright's  sired   by   the   plaintiff,   which   was 
Case,  114  Mass.  230  (1873).  the  payment  of  the  money. 

Michigan.  Carnahan  v.  Carna-  The  power  of  the  courts  of  the 
han,  143  Mich.  390,  114  A.  S.  R.  United  States  to  punish  for  con- 
660  (1906).  tempt  and  imprison  for  non-pay- 
Pennsylvania.  Wilson  V.  Wilson,  ment  of  money  judgments  is  cir- 
142  Pa.  247  (1891);  Chew's  Ap-  cumscribed  and  controlled  by  the 
peal,  44  Pa.  247,  251   (1863).  laws   of   the   state.      Mallory   Mfg. 

United  States.     Camden  v.  May-  Co.  v.  Fox,  20  Fed.  409  (1884). 
hew,    129   U.   S.   73,   32   L.   ed.   608  27.  Durbin  v.  Durbin,  71  111.  App. 

(1889).  51   (1897). 

The  inability  of  the  defendant  to  Pa.  Eq.  Eule  85  provides  that  if 

pay  is  no  defence  in  this  class  of  the   decree   is  for  the   payment   of 

cases.      People    v.    Zimmer;     Cart-  money  the  party  in  whose  favor  it 

wright  's   Case,   ubi   supra.     But    in  is  made  shall  be  entitled  to  have  a 

Grand  Lodge  K.  of  P.  v.  Jansen,  62  minute     thereof     entered     in     the 

N.  J.   Eq.   737    (1900)    an  order  of  docket    and    placed    in    the    usual 

imprisonment  for  failure  to  obey  a  form  of  entering  judgment,  in  the 

decree  for  the  payment   of  money  judgment  index  in  the  common  law 

was   reversed   for   inability   of   the  side  of  the  court, 
defendant   to    pay    on   the    ground 


676  EQUITY  PRACTICE 

ferred  by  statute. ^^  There  are  two  classes  of  contempt 
recognized  by  the  authorities  and  by  the  practice  of 
the  courts.  Direct  contempts  are  those  committed 
in  the  immediate  view  and  presence  of  the  court,  such 
as  insulting  language,  or  acts  of  violence,  which  interrupt 
the  regular  proceedings  in  courts.  This  class  of  con- 
tempts may  and  should  be  punished  summarily  by  the 
court  without  notice  after  such  hearing  as  the  court  may 
deem  just  and  necessary. 

There  is  another  class  of  contempts,  which  are  in  a 
sense  constructive,  and  arise  from  matters  not  taking 
place  in  the  presence  of  the  court  and  so  are  not  within 
the  court's  own  knowledge,  but  must  be  proved  by  evi- 
dence of  witnesses.  A  large  part  of  this  class  of  con- 
tempts consists  of  failures  to  comply  with  the  orders  and 
decrees  issued  by  the  court  and  to  be  performed  else- 
where. Such  refusals  or  failures  are  undoubtedly  con- 
tempts, as  actual  as  those  committed  in  open  court,  and 
liable  to  be  punished  under  the  same  law.  But  the 
process  to  bring  the  parties  into  court  and  the  time  given 
for  a  hearing  are  different  from  the  summary  process  in 
case  of  a  contempt  committed  in  the  presence  of  the 
court. 

§  423.  Proceedings  in  case  of  contempt  by  failure  to 
perform  decrees  other  than  the  payment  of  money.  The 
usual  method  of  enforcing  such  decrees  is  by  rule  upon 
the  defendant  to  show  cause  on  a  certain  day  why  he 
should  not  be  adjudged  guilty  of  contempt  or  why  he 

28.  Alabama.  Coleman  v.  Roberts,  Virginia.       Carter     v.     Common- 

113   Ala.  323,  59   A.  S.   R.   Ill,  36  wealth,  96  Va.  791,  45  L.  R.  A.  310 

L.  R.  A.  84  (1896).  (1899). 

Florida.  Ex  parte  Beville,  58  Fla.  United  States.     Ex  parte  Terry, 

170,  27  L.  R.  A.  (N.  S.)  273  (1909).  128  U.  S.  289,  32  L.  ed.  405  (1888). 

Illinois.    Hake  v.  People,  230  111.  The  statutes  are  simply  declara- 

174  (1907).  tory  of  the  common  law.    People  v. 

Massachusetts.            Cartwright's  Wilson,  64  111.  195,  16  Am.  Rep.  528 

Case,  114  Mass.  230  (1873).  (1872);  In  re  Chadwick,  109  Mich. 

Michigan.  In    re    Chadwick,    109  588  (1896). 
Mich.  588   (1896). 


DECREES 


677 


should  not  be  attached  for  contempt.-^  The  rule  is  some- 
times in  the  form  of  a  rule  to  show  cause  why  an  attach- 
ment should  not  issue.-^*  The  rule  is  issued  on  petition 
or  affidavit  that  the  process  or  decree  of  the  court  has 
been  disregarded  or  disobeyed.     Notice  ^°  of  the  rule  is 


29.  Barclay  v.   Barclay,   184  111. 

47  (1900_);  Burdett  v.  Com.  103  Va. 
838,  68  L.  E.  A.  251,  106  Am.  St. 
Eep.  916  (1904);  Ex  parte  Mylius, 
61  W.  Va.  405,  10  L.  R.  A.  (N.  S.) 
1098  (1907);  Gompers  v.  Bucks 
Stove  &  Range  Company,  221  U.  S. 
418,  55  L.  ed.  797,  34  L.  R.  A. 
(N.  S.)  874  (1911). 

29a.  Florida.  Palmer  v.  Palmer, 
28  Fla.  205  (1891). 

Massachusetts.  Cartwright  's 

Case,  114  Mass.  230  (1873). 

Mississippi.  Shattuck  v.  State, 
51  Miss.  50,  24  A.  S.  R.  624  (1875). 

New  Hampshire.  State  v.  Mat- 
thews, 37  N.  H.  450  (1859). 

New  Jersey.  Dowden  v.  Junker, 

48  N.  J.  Eq.  554  (1891). 
Pennsylvania.   Douglass  Whistler 

•B.  Co.  V.  Simpson,  233  Pa.  517 
(1912). 

West  Virginia.  State  v.  Irwin, 
30  W.  Va.  404  (1887). 

By  the  English  chancery  practice 
it  was  proper,  in  case  the  defendant 
refused  to  do  an  act  ordered  by  the 
court,  to  move  for  a  rule  nisi,  that 
is,  an  order  that  the  defendant  do 
it  before  a  certain  day  or  stand 
committed.  If  the  contempt  con- 
sisted in  doing  an  act  prohibited, 
the  proper  practice  was  to  give  no- 
tice to  the  defendant  that  on  a 
certain  day  a  motion  would  be 
made  that  he  stand  committed  for 
contempt.  See  Worcester  v.  Tru- 
man, 1  McLean  483,  Fed.  Case  No. 
18,043  (1839);  Dan.  Ch.  Pr.  (6th 
Am.  ed.)  pp.  1683-1685.  Where  on 
a  motion  that  the  defendant,  guilty 


of  contempt,  stand  committed,  he 
is  not  ready  to  show  cause,  the 
court  may  set  a  day  for  hearing. 
Gates  V.  McDaniel,  3  Port.  (Ala.) 
356  (1836). 

These  methods  do  not  differ  es- 
sentially since  the  word  "attach- 
ment" mentioned  in  the  rules  to 
show  cause  why  an  attachment 
should  not  issue  or  why  the  defend- 
ant should  not  be  attached  for  con- 
tempt is  used  to  mean  the  punish- 
ment after  due  hearing.  See  Cart- 
wright 's  Case,  114  Mass.  230 
(1873);  State  v.  Matthews,  37  N. 
H.  450  (1859);  Ex  parte  Mylius,  61 
W.  Va.  405,  10  L.  R.  A.  (N.  S.) 
1098  (1907),  and  cases  above  cited. 

The  order  to  show  cause  should 
be  signed  by  the  judge  and  filed 
with  the  clerk.  Dowden  v.  Junker, 
48  N.  J.  Eq.  554   (1891). 

It  must  be  noticed  however  that 
U.  S.  Equity  Rule  8  (1913)  pro- 
vides that  decrees  for  the  perform- 
ance of  specific  acts  must  prescribe 
the  time  within  which  the  act  shall 
be  done,  of  which  the  defendant 
shall  be  bound  without  further 
service  to  take  notice;  and  upon 
affidavit  of  the  plaintiff  filed  in  the 
clerk's  office  that  the  same  has  not 
been  complied  with  within  the  pre- 
scribed time,  the  clerk  shall  issue  a 
writ  of  attachment  against  the  de- 
linquent party.  See  to  the  same 
effect,  Alabama  Code  of  1907,  Sees. 
3214,  3215. 

30.  State  v.  Matthews,  37  N.  H. 
450  (i859);  Buckley  v.  Perrine,  55 
N.    J.    Eq.    514    (1897);    Brick    v. 


678 


EQUITY  PRACTICE 


served  upon  the  defendant,  a  hearing  had,  and  if  he  is 
adjudged  guilty  he  is  fined  or  committed  to  jail  or  if 
he  has  not  appeared,  an  attachment  is  issued  for  his 
arrest.  AVhere  there  is  danger  that  the  defendant  may 
leave  the  jurisdiction,  it  has  been  held  that  an  attach- 
ment may  issue  immediately  without  a  rule  to  show 
cause  and  the  defendant  may  be  brought  before  the  court 
and  a  hearing  had  on  the  question  of  contempt.^^ 

The  petition  or  affidavit  should  set  forth  the  acts  con- 
stituting the  alleged  contempt  and  pray  that  the  rule 
or  attachment  issue  and  that  the  defendant  be  punished. 
The  court  will  take  judicial  notice  of  its  own  decree  and 
for  this  reason  it  need  not  be  set  out  in  detail  in  the 
petition.^- 

Contempts  of  court  for  the  violation  of  a  decree  may 
be  either  civil  or  criminal  depending  upon  the  character 


Simpson,  233  Pa.  517  (1912);  Ex 
parte  Langdon,  25  Vt.  680  (1853); 
Ward  V.  Ward,  70  Vt.  430  (1898); 
Burdett  v.  Com.,  103  Va.  838",  68 
L.  R.  A  251,  106  Am.  St.  Rep.  916 
(1904) ;  Worcester  v.  Truman,  1  Mc- 
Lean 483,  Fed.  Cas.  No.  18,043 
(1839). 

Personal  service  of  the  rule  to 
show  cause  or  the  motion  to  com- 
mit should  be  made  on  defendant. 
Palmer  v.  Palmer,  28  Fla.  295 
(1891);  Whelan  v.  Whelan,  161  111, 
App.  293  (1911);  Ex  parte  Mylius, 
61  W.  Va.  405,  10  L.  R.  A.  (N.  S.) 
1098;  Bate  Refrigerating  Co.  v. 
Gillette,  24  Fed.  296   (1885). 

Unless  the  court  makes  a  special 
order  of  notice  where  personal  serv- 
ice cannot  be  obtained.  Palmer  v. 
Palmer,  28  Fla.  498,  502  (1865). 

31.  Ex  parte  Petrie,  38  111.  498, 
502  (1865);  State  v.  Frew,  24  W. 
Va.  416  (1884);  In  re  Steiner,  195 
Fed.  299  (1912). 

Since  the  attachment  under  these 


circumstances  is  not  the  final  pun- 
ishment but  merely  the  capias  for 
bringing  the  defendant  before  the 
court  it  does  not  violate  the  rule 
that  the  defendant  should  have  his 
day  in  court  before  being  convicted* 
of  contempt.  Ex  parte  Petrie,  38 
111.  498  (1865). 

The  capias  or  attachment  should 
only  be  used  under  extraordinary 
circumstances  where  a  previous  no- 
tice would  defeat  the  ends  of  jus- 
tice. Brick  Co.  v.  Simpson,  233  Pa. 
517  (1912). 

In  Hollingsworth  v.  Duane,  Fed. 
Cas.  No.  6617  (1801);  Bate  Re- 
frigerating Co.  V.  Gilette,  24  Fed. 
696  (1885);  Shattuck  v.  State,  51 
Miss.  50  (1875),  and  Morris  v. 
Creel,  1  Va.  Cas.  333  (1814),  it  was 
held  that  notice  must  be  given  be- 
fore the  attachment  or  capias 
would  issue. 

32.  Hake  v.  People,  230  111.  174 
(1907);  Wilson  v.  Calcugraph  Co., 
153  Fed.  961   (1907). 


DECREES 


679 


and  purpose  of  the  punishment.  Where  the  punishment 
is  remedial  and  for  the  benefit  of  the  plaintiff,  the  pro- 
ceedings are  civil,  and  where  the  punishment  is  to  vindi- 
cate the  authority  of  the  court,  the  proceedings  are 
criminal.^^ 

Civil  proceedings  for  contempt  are  entitled  in  the  main 
cause  and  are  treated  as  part  of  the  equity  suit  and 
terminate  upon  a  settlement  of  the  case.  Criminal  pro- 
ceedings, on  the  other  hand,  are  independent  of  the  main 
suit,  being  between  the  public  and  the  defendant  and 
should  be  so  entitled.^^    Where  the  contempt  proceedings 


33.  Gompers  v.  Bucks  Stove  & 
Range  Company,  221  U.  S.  418,  55 
L.  ed.  797   (1911). 

In  this  case  the  court  say,  p.  441, 
"It  is  not  the  fact  of  punishment, 
but  rather  its  character  and  pur- 
pose, that  often  serve  to  distin- 
guish between  the  two  classes  of 
eases.  If  it  is  for  civil  contempt 
the  punishment  is  remedial,  and  for 
the  benefit  of  the  complainant.  But 
if  it  is  for  criminal  contempt  the 
sentence  is  punitive,  to  vindicate 
the  authority  of  the  court.  It  is 
true  that  punishment  by  imprison- 
ment may  be  remedial  as  well  as 
punitive,  and  many  civil  contempt 
proceedings  have  resulted  not  only 
in  the  imposition  of  a  fine,  payable 
to  the  complainant,  but  -also  in 
committing  the  defendant  to  prison. 
But  imprisonment  for  civil  con- 
tempt is  ordered  where  the  defend- 
ant has  refused  to  do  an  affirma- 
tive act  required  by  the  provisions 
of  an  order  which,  either  in  form 
or  substance,  was  mandatory  in  its 
character.  Imprisonment  in  such 
cases  is  not  inflicte(]  as  a  punish- 
ment, but  is  intended  to  be  reme- 
dial by  coercing  the  defendant  to 
do  what  he  had  refused  to  do.  The 
decree  in  such  cases  is  that  the  de- 


fendant stand  committed  unless 
and  until  he  performs  the  affirma- 
tive act  required  by  the  court's 
order.    .    .    . 

"On  the  other  hand,  if  the  de- 
fendant does  that  which  he  has  been 
commanded  not  to  do,  the  dis- 
obedience is  a  thing  accomplished. 
Imprisonment  cannot  undo  or  rem- 
edy what  has  been  done,  nor  afford 
any  compensation  for  the  pecuniary 
injury  caused  by  the  disobedience. 
If  the  sentence  is  limited  to  im- 
prisonment for  a  definite  period, 
the  defendant  is  furnished  no  key, 
and  he  cannot  shorten  the  term  by 
promising  not  to  repeat  the  offense. 
Such  imprisonment  operates  not  as 
a  remedy  coercive  in  its  nature, 
but  solely  as  punishment  for  the 
completed  act  of  disobedience." 

34,  Manning  v.  Securities  Co.,  242 
111.  584  (1909);  Winslow  v.  Nayson, 
113  Mass.  411  (1873);  Alderson  v. 
Commrs.,  32  W.  Va.  334,  5  L.  R.  A. 
334  (1889);  Gompers  v.  Bucks 
Stove  &  Range  Co.,  221  U.  S.  418, 
55  L.  ed.  797  (1911). 

In  some  jurisdictions  the  practice 
in  criminal  contempts  is  to  entitle 
the  proceedings  in  the  main  suit 
until  after  the  rule  or  attachment 
issues   and   then   a^s   a   suit   by   the 


686 


EQUITY  PRACTICE 


are  civil,  it  is  only  necessary  to  prove  the  allegations  of 
the  petition  by  a  preponderance  of  evidence,  while  in 
the  case  of  criminal  proceedings,  the  defendant  must  be 
proved  guilty  beyond  a  reasonable  doubt  ^'  and  cannot 
be  compelled  to  testify  against  himself .^^  Civil  contempt 
proceedings  are  reviewable  by  appeal,  and  criminal  con- 
tempt proceedings  by  writ  of  error  or  bill  of  exceptions.^'^ 


government.  Eice  v.  Small,  1  Del. 
Ch.  68  (1819)  note;  Cartwright's 
Case,  114  Mass.  230  (1873);  State 
V.  Matthews,  37  N.  H.  450  (1859); 
State  V.  Pelton,  30  W.  Va.  404 
(1887). 

35.  Kreplik  v.  Couch  Patents  Co., 
190  Fed.  565  (1911);  General  Elec. 
Co.  V.  McLaren,  140  Fed.  876 
(1905);  Accumulator  Co.  v.  Consol- 
idated Elec.  Storage  Co.,  53  Fed. 
793  (1892);  Celluloid  Mfg.  Co.  v. 
Chrolithium  Collar  &  Cuff  Co.,  24 
Fed.  585  (1885).  Contra,  Hake  v. 
People,  230  111.  174  (1907),  225  111. 
315  (1907) ;  Flannery  v.  People",  225 
111.  62  (1907). 

36.  Gompers  v.  Bucks  Stove  & 
Range  Company,  221  U.  S.  418,  55 
L.  ed.  797  (1911). 

Where  the  proceedings  are  for 
criminal  contempt,  the  party  must 
be  brought  before  the  court  before 
sentence  of  imprisonment  can  be 
rendered.  Ex  parte  Mylius,  61  W. 
Va.  405,  10  L.  R.  A.  (N.  S.)  1098 
(1907).  This  is  not  necessary  in 
civil  proceedings.  Barclay  v.  Bar- 
clay, 184  111.  471  (1900). 

37.  Illinois.  People  v.  Diedrich, 
141  111.  665   (1892). 

Michigan.  People  ex  rel.  Missler 
V.  Simonson,  9  Mich   492  (1862). 

Virginia.  Baltimore  &  O.  R.  Co. 
V.  Wheeling,  13  Gratt.  40  (1855). 

West  Virginia.  Craig  v.  McCul- 
lock,  20  W.  Va.  148  (1882). 

United  States.    Bessette  v.  W.  B. 


Conkey  Co.,  194  U.  S.  324,  48  L.  ed. 
997  (1903);  Worden  v.  Searls,  121 
U.  S.  14,  30  L.  ed.  853  (1886). 

A  judgment  against  a  party  to  a 
suit  in  equity  for  a  civil  contempt 
committed  therein  before  final  de- 
cree is  reviewable  in  the  Circuit 
Court  of  Appeals  by  appeal  from  the 
final  decree  only.  Boyle  v.  London 
Guarantee  Company,  204  U.  S.  599, 
605,  607,  51  L.  ed.  641  (1907).  But 
where  the  contempt  was  in  violat- 
ing an  interlocutory  injunction  and 
was  punished  by  fines,  part  of 
which  were  to  compensate  plaintiff 
and  part  payable  to  the  United 
States,  the  judgment  was  held  a 
final  criminal  judgment  reviewable 
in  the  Circuit  Court  of  Appeals  liy 
writ  of  error  without  awaiting  final 
decree  in  the  equity  suit  and  ap- 
pealing therefrom.  In  re  Mer- 
chants Stock  &  Grain  Co.,  223  U.  S. 
639,  56  L.  ed.  584  (1911). 

In  Grand  Lodge  K.  of  P.  v.  Jan- 
sen,  62  N.  J.  Eq.  737  (1900),  it  was 
held  that  the  contempt  proceeding 
was  reviewable  by  appeal  in  so  far 
as  it  was  for  the  relief  of  the  suitor 
and  not  for  the  vindication  of  the 
court. 

Whether  a  judgment  of  contempt 
is  reviewable  at  all  will  of  course 
depend  upon  the  statutes  of  the 
various  jurisdictions  regulating  ap- 
pellate procedure. 

In  Maine  no  appeal  can  be  taken 
from  an  order  or  decree  of  punish- 


DECREES 


681 


Costs   are   not   generally   awarded   in   proceedings   for 
criminal  contempt.^^ 

Imprisonment  may  be  imposed  to  compel  obedience  to 
a  decree  or  as  a  punishment  to  vindicate  the  authority 
of  the  court,''''  and  unless  forbidden  by  statute  a  defend- 
ant may  be  imprisoned  until  he  pays  a  fine  imposed  either 
as  a  punishment  or  as  compensation  to  the  plaintiff.^" 
Fines  for  contempt  by  way  of  indemnity  to  the  injured 
party  may  be  imposed  although  this  power  has  been 
held  to  rest  entirely  on  statute.^^ 


ment  for  disobeying  a  decree,  nor 
any  bill  of  exceptions  except  on  a 
question  of  jurisdiction.  Me.  R.  S., 
Ch.  79,  Sec.  36. 

38.  Magennis  v.  Parkhurst,  4  N. 
J.  Eq.  433  (1844);  Gompers  v. 
Bucks  Stove  &  Range  Company,  221 
U.  S.  418,  55  L.  ed.  797,  34  L.  R.  A. 
(N.  S.)  874  (1911). 

39.  Alabama.  Ex  parte  Walker, 
25  Ala.  81    (1854). 

Illinois.  People  v.  Zimmer,  238 
111.  607  (1909);  Rothschild  &  Co.  v. 
Steger  &  Sons  Piano  Mfg.  Co.,  256 
111.  196,  42  L.  R.  A.  (N.  S.)  793 
(1912). 

Michigan.  Carnahan  v.  Carna- 
han,  143  Mich.  390,  114  A.  S.  R.  660 
(1906). 

Rhode  Island.  Jastram  v.  Mc- 
Auslan,  29  R.  I.  390   (1909). 

West  Virginia.  State  v.  Irwin, 
30  W.  Va.  404  (1887). 

And  see  statutes  of  the  various 
jurisdictions. 

Where  however  the  contempt  con- 
sists in  doing  an  act  forbidden  and 
proceedings  are  brought  for  reme- 
dial relief,  it  is  error  to  punish 
by  imprisonment  since  this  would 
be  awarding  a  criminal  sentence  in 
a  civil  proceeding.  Gompers  v. 
Bucks  Stove  &  Range  Co.,  221  U.  S. 


418,  55  L.  ed.  797,  34  L.  R.  A. 
(N.  S.)  874  (1911). 

In  Illinois,  however,  no  distinc- 
tion is  made  between  civil  and 
criminal  contempts  as  far  as  the 
nature  of  the  punishment  is  con- 
cerned. Therefore  it  is  proper  in 
civil  contempt  proceedings  to  im- 
pose a  fine  payable  to  the  state  or 
to  imprison  for  a  definite  term  or 
both.  Rothschild  &  Co.  v.  Steger 
&  Sons  Piano  Mfg.  Co.,  256  111.  196, 
42  L.  R.  A.  (N.  S.)  793  (1912). 
This  case  refused  to  follow  the 
Gompers  case,  holding  that  it  was 
not  binding  on  a  state  court. 

One  arrested  on  process  for  con- 
tempt may  be  admitted  to  bail  in 
some  jurisdictions.  Me.  R.  S.,  Ch. 
79,  Sec.  36;  State  v.  Matthews,  37 
N.  H.  450  (1869). 

In  Tennessee  no  bail  is  allowed 
on  attachment  for  non-performance 
of  decrees.  Code  of  Tenn.,  Sec. 
6298.  And  in  Maine  bail  will  not 
be  allowed  where  the  party  is  ar- 
rested a  second  time  for  disobeying 
the  same  order  or  decree.  Me.  R. 
S.,  Ch.  79,  Sec.  36. 

40.  Fisher  v.  Hayes,  6  Fed.  63 
(1881). 

41.  Chapel  v.  Hull,  60  Mich.  167 
(1886);  Robins  v.  Frazier,  5  Heisk. 


682 


EQUITY  PRACTICE 


Prompt  compliance  with  a  decree  after  tlie  institution 
of  contempt  proceedings  will  purge  the  contempt  where 
no  material  injury  has  resulted  to  the  plaintiff,"*-  and 
after  adjudication  the  defendant  may  be  allowed  in  the 
decree  to  purge  the  contempt  by  performing  the  act  com- 
plained of  or  undoing  the  acts  prohibited."*^ 

Where  an  appeal  has  been  taken  from  a  decree  in  the 
main  suit  prohibiting  an  act,  contempt  proceedings  may 
be  instituted  in  the  lower  court  to  punish  the  violation 
of  the  decree  while  the  case  is  pending  in  the  appellate 
court,  and  even  though  a  supersedeas  has  been  awarded. ^^ 


(Tenn.)  100  (1871);  Mfg.  Co.  v. 
Clasp  Co.,  108  Fed.  873  (1901). 

It  was  held  in  Barnes  v.  Union 
No.  16,  232  111.  402  (1908),  that  this 
power  rested  on  statute.  See  Camp- 
bell V.  Justices  Sup.  Court,  187 
Mass.  509  (1905). 

Where  a  fine  is  imposed  by  way 
of  indemnity  to  plaintiff,  it  should 
be  measured  by  the  amount  neces- 
sary to  reimburse  him  for  expenses 
incurred  in  prosecuting  the  proceed- 
ing and  loss  caused  by  the  con- 
tempt. Engineering  Co.  v.  Brake 
Co.,  135  Fed.  774  (1905). 

In  Kreplik  v.  Couch  Patents  Co., 
190  Fed.  565  (1911),  the  court  held 
that  there  was  no  error  in  imposing 
a  fine  for  the  benefit  of  plaintiff 
measured  by  the  pecuniary  injury 
caused  him  and  also  in  the  same 
proceeding  imposing  a  sentence  by 
imprisonment  to  vindicate  its  au- 
thority where  the  defendant  under- 
stood that  he  was  being  tried  upon 
a  criminal  charge  and  all  his  rights 
under  such  a  proceeding  were  pro- 
tected. 

42.  Freeze  v.  Swayze,  26  N.  J. 
Eq.  437  (1875). 

43.  See  decree  in  Clay  v.  Waters, 
178  Fed.  385  (1910). 

The   President   has   no   power   to 


pardon  civil  contempts.  In  re 
Xavitt,  117  Fed.  448  (1902). 

But  an  order  of  imprisonment  in 
civil  contempt  proceedings  is  al- 
ways within  the  power  of  and  sub- 
ject to  modification,  suspension,  or 
discharge  by  the  court  which  has 
made  it  and  by  that  court  alone. 
In  re  Navitt,  117  Fed.  448   (1902). 

44.  Barnes  v.  Typographical 
LTnion,  232  111.  402,  14  L.  E.  A. 
(X.  S.)  1150  (1908);  Powhattan 
Coal  &  Coke  Co.  v.  Ritz,  60  W.  Va. 
395,  9  L.  E.  A.  (X.  S.)  1225  (1906); 
State  ex  rel.  Bettman  v.  Harness, 
42  W.  Va.  414  (1896). 

And  where  a  decree  of  the  lower 
court  dissolving  an  injunction  is 
reversed  on  appeal  and  then  the 
injunction  is  violated,  the  contempt 
proceedings  should  be  brought  in 
the  lower  court.  Gates  v.  McDan- 
iel,  3  Port.  (Ala.)  356  (1836). 

Where,  however,  there  is  a  dis- 
solution of  an  injunction,  an  appeal 
and  a  supersedeas,  the  order  of  the 
lower  court  dissolves  and  ends  the 
injunction,  and  it  is  only  given  new 
life  by  the  superseding  writ  of  the 
appellate  court  and  therefore  the 
contempt  proceedings  must  be  in 
the  latter  court.  State  v.  Bridge 
Co.,  16  W.  Va.  864  (1879). 


DECREES  683 

§  424.  Sales  under  decrees.  The  ordinary  sales  of 
property  under  a  decree  in  equity,  as  in  suits  for  fore- 
closure, partition  and  the  like,  are  made  by  a  master  in 
chancery.'*^  The  court  in  its  decree  or  order  for  the  pur- 
pose authorizes  the  master  to  make  the  sale  of  the  prop- 
erty in  question,  at  public  auction  or  private  sale  as 
the  case  may  be,  and  if  notice  is  required  directs  him  to 
give  sufficient  notice  in  the  manner  therein  specified, 
which  is  usually  by  publication  in  some  suitable  news- 
paper published  in  the  county,  of  the  time  appointed  by 
the  master  for  the  sale,  and  to  report  his  proceedings  in 
the  premises  to  the  court.  The  master  should  then  make 
the  contract  of  sale  with  the  purchaser,  subject  to  the 
approval  of  court,  and  report  the  proceedings,  the  name 
of  the  purchaser  and  the  terms  of  the  sale.  The  plaintiff 
or  purchaser  ■*''  (who  by  his  bid  becomes  a  quasi  party) 
or  any  party  in  interest  ^'^  may  then  file  his  petition  or 
motion  in  writing  asking  that  the  report  be  accepted 
and  the  sale  confirmed.^^     If  the  report  is  satisfactory 

In     Wilkinson     v.     Dunkley-Wil-  48.  The  usual  practice  is  to  make 

liams  Co.,  141  Mich.  409  (1905)  and  a  motion  for  confirmation  and  this 

Penn.   R.    Co.    v.   National     Docks,  is  then  followed  by  a  decree  that 

etc.,  Co.,  54  N.  J.  Eq.  647  (1896),  it  the   sale   will   be   confirmed   unless 

was   held  that  the   appellate   court  cause    to    the    contrary    be    shown 

was  the  proper  tribunal  to  punish  within   a  certain   number  of   days, 

the  violation  of  an  injunction  after  Hunting    v.    Walter,    33    Md.     60 

appeal  taken.  (1870);    Henderson    v.    Herrod,    23 

45.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  Miss.  434  (1852);  Pewabic  Mining 
pp.  1264-1294;  Williamson  v.  Berry,  Co.  v.  Mason,  145  U.  S.  349,  36  L. 
8  How.  546  (1850).  Sales  by  re-  ed.  732  (1892).  It  is  the  practice 
ceivers  will  be  considered  under  jq  gome  of  the  Federal  courts  to 
Ch.  XXVII,  "Receivers,"  post,  p.  gj^.g  ^^^^^^^  of  tj^e  motion  for  a  de- 

CIO 

°     •  cree     iiisi.      Coltrane     v.     Baltimore 

46.  Williamson  v.  Berry,  8  How.  gj^^  ^  ^oan  Association,  126  Fed. 
(U.  S.)  546  (1850).  839  (1903). 

47.  Sayre  v.  Elyton  Land  Co.,  73 

Ala    85   96  C188''')  Under   its   inherent   power   it    is 

The  purchaser  at  a  judicial  sale  competent   for   the   chancery   court 

is  not  the  only  one  who  may  move  to  confer  power  on  its  commissioner 

for  confirmation.     Coltrane  v.  Bal-  to   sell  property  without   confirma- 

timore   Bldg.   &   Loan   Association,  tion     of    the    sale.       Crawford     v. 

126  Fed.  839  (1903).  Woodward,   1    Tenn.   Ch.   App.   274 


684 


EQUITY  PRACTICE 


and  confinnation  not  resisted,  the  court  will  thereupon 
order  that  the  sale  be  confirmed ;  that  the  master  prepare 
the  necessary  deed  or  instrument  of  conversance;  that 
the  defendant  execute  ^'-^  the  same  in  due  form,  and  that 
it  be  delivered  to  the  purchaser  by  the  master  on  pay- 
ment of  the  purchase  money  into  court.^"  After  the 
transaction  is  thus  completed,  the  master  makes  a  final 
report  of  his  doings  with  an  account  of  the  money 
received,  which  report  is  then  accepted,  the  money 
ordered  to  be  paid  over  to  the  parties  entitled  thereto 
and  the  matter  is  thus  finally  wound  up.  On  the  other 
hand  if  the  confirmation  of  the  report  is  resisted  and 
sufficient  grounds  are  shown  therefor,  the  court  may 
reject  the  report  and  order  a  resale. 


(1901).  But  in  general  to  render 
valid  a  deed  to  a  purchaser,  the  sale 
must  be  confirmed.  Wagner  v. 
Cohen,  6  Gill.  (Md.)  97,  45  Am. 
Dec.  660  (1847);  Tooley  v.  Caine, 
Sm.  &  M.  Ch.  (Miss.)  518  (1843); 
Jones  V.  Hollingsworth,  10  Heisk. 
(Tenn.)  653  (1873);  Thompson  v. 
Cox,  42  W.  Va.  566  (1896). 

An  order  for  confirmation  cures 
defects  and  irregularities  in  the 
sale.  Brown  v.  Gilmor,  8  Md.  322 
(1855);  Henderson  v.  Herrod,  23 
Miss.  434  (1852);  Eobertson  v. 
Smith,  94  Va.  250,  64  Am.  St.  Kep. 
723  (1897). 

49.  Or  where  the  court  has  juris- 
diction of  the  res,  but  not  of  the 
defendants  by  reason  of  their  non- 
residence,  the  master  may  be  or- 
dered to  execute  the  conveyance. 
DuPuy  V.  Standard  Mineral  Co.,  88 
Me.   202    (1895). 

50.  This  practice  of  having  the 
agreement  of  sale  made  by  the 
master  and  confirmed  by  the  court 
before  any  conveyance  is  made  to 
the  purchaser,  is  the  English  prac- 
tice   (see   Dan.    Ch.   Pr.    (6th    Am. 


ed.),  pp.  1274,  1275;  Vesey  v.  El- 
worthy,  3  Dr.  &  W.  74)  and  the 
practice  in  Virginia  and  West  Vir- 
ginia (see  W^hitlock  v.  Johnson,  87 
Va.  323  (1891);  Kable  v.  Mitchell, 
9  W.  Va.  514  (1876));  in  Missis- 
sippi (Mitchell  v.  Harris,  45  Miss. 
314  (1870)),  and  in  Maine;  but  in 
New  Jersey  and  some  other  juris- 
dictions, the  deed  is  delivered  and 
the  transaction  completed  before 
any  confirmation  by  the  court. 
See  Campbell  v.  Gardner,  11  N.  J. 
Eq.  424,  425  (1857).  This  latter 
practice  might  be  followed  any- 
where to  the  extent  of  completing 
the  conveyance  before  final  con- 
firmation, if  it  should  be  found 
more  convenient  under  the  circum- 
stances of  any  particular  case;  but 
it  should  be  finally  confirmed  by 
the  court  after  the  transaction  is 
completed.  The  method  of  having 
the  court  pass  upon  the  sale  before 
its  completion,  however,  is  far 
preferable  ordinarily  and  is  the 
method  advised  as  a  general  rule. 
It  enables  the  court  to  pass  upon 
the   essential  conditions  and  terms 


DECREES 


685 


§  425.  Resale  before  confirmation.  Sales  under  decretal 
orders  are  alwaj's  regarded  as  subject  to  the  approval 
and  control  of  the  court  before  confirmation.'^^  Any 
party  in  interest  may  resist  the  motion  for  confirmation 
or  apply  for  a  resale  ^'-  without  waiting  for  such  motion. 
In  such  case  the  master's  contract  of  sale  may  be  dis- 


of  the  sale  before  any  irrevocable 
step  has  been  taken,  and  without 
any  danger  of  the  rights  of  inno- 
cent third  parties  intervening  to 
prevent  justice  being  done  to  such 
original  parties  as  may  have  been 
injured  by  the  sale.  The  ensuing 
sections  of  the  text  on  this  subject 
therefore  will  be  based  on  the  Eng- 
lish practice. 

In  Kable  v.  Mitchell,  9  W.  Va. 
514  (1876),  after  an  elaborate  opin- 
ion on  the  subject  which  will  well 
repay  examination,  the  court  said: 
"So  far  as  I  am  advised,  it  has 
not  been  the  rule  or  practice  of 
courts  of  equity  of  Virginia,  or  of 
this  state,  in  decreeing  the  sale  of 
lands,  and  appointing  commission- 
ers to  make  the  sale,  to  direct  and 
empower  the  commissioners  to  both 
sell  and  convey.  The  decrees  uni- 
versally direct  the  commissioners  to 
sell  and  report  their  proceedings 
to  the  court,  and  the  court  upon 
the  report  of  sale,  either  approves 
and  confirms  the  sale,  or  sets  it 
aside.  ...  In  the  case  of  Cooke  's 
Admr.  V.  Gilpin,  1  Eobinson  (Va.) 
:!9  (1842),  Judge  Baldwin  in  de- 
livering the  opinion  of  the  court 
Kays,  'In  truth,  however,  the  pur- 
chaser acquires  no  right  until  a 
confirmation  of  the  sale  by  the 
court  and  until  the  order  confirm- 
ing the  report,  he  is  only  inchoately 
and  not  absolutely  a  purchaser, 
having  until  then  no  fixed  interest 
in   the   subject.     That   such   is   the 


English  doctrine  is  well  settled. 
Ex  parte  Minor,  11  Ves.  559; 
Swigg  V.  Fifield,  13  Id.  517;  Anson 
V.  Towgood,  1  Jae.  &  Walk.  619.'  " 

The  discretion  vested  in  the  chan- 
cellor in  the  matter  of  approving 
sales  made  by  masters  in  chancery 
cannot  be  exercised  arbitrarily, 
even  where  the  deed  is  by  the  terms 
of  the  decree  not  to  be  made  to  the 
purchaser  until  after  confirmation 
of  the  sale.  Quigley  v.  Breckin- 
ridge, 180  111.  627   (1899). 

It  is  sometimes  provided  by 
statute  that  sales  may  be  made  on 
credit,  the  person  making  the  sale 
taking  bond  in  double  the  amount 
of  the  purchase  price,  payable  to 
the  parties  entitled  thereto,  condi- 
tioned for  payment  of  purchase 
price  and  interest.  If  not  paid  at 
maturity  the  bond  has  the  force  of 
a  judgment,  and  execution  may 
issue  thereon.  See  Code  of  Missis- 
sippi, Sec.  650. 

51.  Woodward  v.  Bullock,  27  N. 
J.  Eq.  507  (1875);  Blossom  v.  Mil- 
waukee R.  Co.,  3  Wall.  196  (1865). 
' '  Where  estates  are  sold  before  a 
master,  under  the  decree  of  a  court 
of  equity,  the  court  considers  itself 
to  have  greater  power  over  the 
contract  than  it  would  have,  were 
the  contract  made  between  party 
and  party."  Dan.  Ch.  Pr.  (6th 
Am.  ed.),  p.  1285. 

52.  Brown  v.  Frost,  10  Paige 
(N.  Y.)   243   (1843). 


686 


EQUITY  PRACTICE 


aflSrmed  in  the  discretion  of  the  court  and  a  resale  ordered 
for  any  cause  which  may  make  it  seem  prejudicial  to  any 
party  in  interest,  or  inadvisable  under  all  the  circum- 
stances of  the  case.  Mere  inadequacy  of  price  may  be 
sufficient  cause  for  disaffirming  the  sale  before  it  has 
been  confirmed.''^ 


53.  In  the  English  practice,  a  re- 
sale was  ordered  on  very  slight 
grounds  before  confirmation,  lo 
Campbell  v.  Gardner,  11  N.  J.  Eq. 
423  (1857),  the  court  said,  "Ac- 
cording to  the  practice  in  the 
court  of  chancery  in  England,  if 
parties  apply  to  open  biddings  be- 
fore the  report  is  confirmed,  it  is 
a  matter  of  course  to  open  them 
on  payment  of  costs  and  making  a 
deposit,  but  after  confirmation,  a 
special  ground  upon  evidence  is  re- 
quired." And  see  Dan.  Ch.  Pr. 
(6th  Am,  ed.),  pp.  1285,  1287-8,  and 
Watts  V.  Martin,  4  Bro.  C.  C.  113. 
In  the  English  practice,  further- 
more, it  was  customary  to  open  the 
biddings  to  accept  an  offer  from  a 
higher  bidder  before  confirmation. 
In  Dan.  Ch.  Pr.  (6th  Am.  ed.),  p. 
1286,  it  is  said,  "Mere  advance  of 
price,  if  the  report  of  the  purchaser 
is  not  absolutely  confirmed,  is  suf- 
ficient to  open  the  biddings  "  And 
again  on  page  1288,  "The  proper 
time  for  opening  the  biddings  is  be- 
fore the  master's  report  of  the  sale 
has  been  confirmed  absolutely; 
after  that,  increase  of  price  alone, 
however  large,  is  not  sufficient  to 
induce  the  court  to  grant  the  ap- 
plication, although  it  is  a  strong 
auxiliary  argument  when  there  are 
other  grounds."  But  this  practice 
of  opening  bids  to  any  higher  bid- 
der has  been  changed  in  England 
by  Stat.  30  and  31  Vic,  Chap.  48, 
See.  7,  and  has  not  been  generally 


adopted  in  this  country.  See  Page 
V.  Kress,  80  Mich.  85,  20  Am.  St. 
Eep.  504  (1890);  Duncan  v.  Dodd, 
2  Paige  (N.  Y.)  100  (1830);  and 
Eoudaboush  v.  Miller,  32  Grat. 
(Ya.)  454  (1879).  It  does  not 
seem  desirable  that  it  should  be 
introduced  here,  especially  where  a 
fair  price  has  been  obtained.  On 
the  other  hand,  where  the  price 
obtained  is  wholly  inadequate,  it 
should  certainly  not  only  be  allow- 
able but  the  duty  of  the  court  to 
order  a  resale  before  confirmation; 
indeed  this  is  one  of  the  very  ar- 
guments in  favor  of  this  method  of 
procedure, — that  it  permits  the 
courts  to  pass  upon  the  terms  of 
the  sale  at  this  early  stage  before 
any  steps  irrevocable  in  their  na- 
ture have  been  taken.  The  sale 
will  be  set  aside  before  confirma- 
tion for  reasonable  grounds  in  the 
discretion  of  the  court,  and  in- 
adequacy of  price  is  held  to  be  a 
good  ground  for  the  exercise  of 
such  discretion,  especially  where 
the  inadequacy  is  so  gross  that  a 
confirmation  of  the  sale  will  result 
in  the  sacrifice  of  the  property. 
Cole's  Heirs  v.  Cole's  Executor,  83 
Va.  525  (1887);  Kable  v.  Mitchell, 
9  W.  A'a.  514  (1876);  Hughes  v. 
Hamilton,  19  W.  Va.  366  (1882). 
Where  confirmation  of  a  judicial 
sale  is  refused  for  inadequacy  of 
price  alone,  the  applicants  for  re- 
sale will  be  required  to  give  some 
security     that    at     such     resale     a 


DECREES 


687 


§  426.  Setting  aside  sale  after  confirmation.  After 
confirmation  of  sale  and  execution  of  conveyance,  if  the 
decree  of  confirmation  is  not  a  final  decree  terminating 
the  cause,  but  the  latter  still  remains  in  court  subject  to 
its  control,  the  sale  may  still  be  set  aside  on  petition  of 
any  party  in  interest,  upon  any  sufficient  showing  of 
fraud,  accident,  mistake  or  surprise,^^  provided  this  can 


higher  purchase  price  will  be  paid 
for  the  property.  Porch  v.  Agnew 
Co.,  66  N.  J.  Eq.  232  (1903).  And 
see  Miss.  Code,  Sec.  650.  A  judicial 
sale  will  be  set  aside  before  con- 
firmation for  mistake  or  surprise. 
Hunting  v.  Walter,  33  Md.  60 
(1870). 

54.  It  is  to  be  borne  in  mind  in 
examining  the  authorities  on  this 
point,  as  to  resale  after  confirma- 
tion, that  setting  aside  a  sale  in 
the  English  practice  after  confirma- 
tion, is  equivalent  to  setting  aside 
sale  after  delivery  of  deed  and 
completion  of  conveyance  in  the 
New  Jersey  practice,  where  this  is 
done  before  or  without  confirma- 
tion. Consequently,  grounds  which 
are  held  sufficient  to  set  aside  sale 
in  those  states  after  delivery  of 
deed  although  before  confirmation, 
would  be  held  sufficient  in  the 
English  practice  to  justify  setting 
sale  aside  after  confirmation.  In 
Campbell  v.  Gardner,  11  N.  J.  Eq. 
424,  425  (1857),  the  chancellor  said, 
"In  England,  a  sale  confirmed  is 
upon  the  same  footing  as  a  sale 
here,  which  has  been  confirmed 
(not  by  the  court  for  that  is  not 
required)  but  by  the  sheriffs  com- 
pleting all  that  is  necessary  to  be 
done,  as  sale  upon  his  execution, 
and  delivery  of  his  deed  to  the 
purchaser.  The  same  objection, 
therefore,  which  would  exist  to  the 
opening  of  the  sale  by  this   court, 


upon  motion  or  petition  after  the 
sheriff  had  delivered  his  deed, 
would  operate  with  equal  force 
against  that  practice  after  a  con- 
firmation of  sale,  if  such  confirma- 
tion were  necessary." 

As  to  the  English  practice,  it  is 
said  in  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1290,  "Fraud  will,  of  course,  be 
a  sufficient  ground  for  opening  the 
biddings,  .  .  .  although  the  report 
has  been  absolutely  confirmed;"  as 
for  example,  where  the  parties 
agree  not  to  bid  against  each  other* 
(Watson  V.  Birch,  2  Ves.  Jr.  51). 
Lord  Eedesdale  said  that  the  sale 
could  be  opened  after  confirmation 
on  the  ground  of  fraud  (Fergus  v. 
Gore,  1  Sch.  &  Lef.  350).  See  also 
Delves  v.  Delves,  L.  R.  20  Eq.  77; 
Gower  v.  Gower,  2  Eden,  348,  and 
as  to  mistake,  Morice  v.  Bishop  of 
Durham,  11  Ves.  57;  White  v.  Wil- 
son, 14  Ves.  151,  153. 

For  American  authorities,  see  as 
to  fraud: 

Alabama.  Aderholt  v.  Henry,  82 
Ala.  541   (1886). 

Illinois.  Kennedy  v.  Afdal,  229 
111.  295  (1907). 

New  Jersey.  Nat.  Bank  v. 
Sprague,  21  N.  J.  Eq.  458  (1869); 
Seaman  v.  Riggins,  2  N.  J.  Eq.  214 
(1839). 

Virginia.  Kern  v.  Rorer  Iron 
Co.,  86  Va.  754  (1890). 

United  States.  Koontz  v.  Bank, 
16  Wall.  196  (1872). 


688 


EQUITY  PRACTICE 


be  done  without  prejudice  to  the  rights  of  intervening 
third  parties.^^  Mere  inadequacy  of  price  will  not  be 
sufficient  for  setting  aside  a  sale  that  has  been  con- 
firmed,^'^ unless  the  inadequacy  of  price  is  combined  with 
other  causes.^''^  If  a  final  decree  has  been  rendered  in 
the  cause  and  enrolled  (i.  e.,  signed,  entered  and  filed) 
leaving  nothing  further  to  be  determined,  the  proper 
l^rocedure  to  have  the  sale  set  aside  is  by  original  bill 
to  impeach  the  decree, ^^ 
§  427.  Enforcing  sale  against  purchaser.     Purchasers 


Misrepresentations  to  bidders  is 
a  sufficient  ground.  Woodward  v. 
Bullock,  27  N.  J.  Eq.  507  (1875). 
Or  persuading  or  hiring  another  not 
to  bid  or  in  any  way  interfering 
with  free  competition.  Devine  v. 
Harkness,  117  111.  145  (1886). 

See  as  to  mistake- 
Alabama.  Branch  Bank  v.  Hunt, 
8  Ala.  876  (1846). 

Maryland.  Hunting  v.  Walter, 
33  Md.  60  (1870). 

New  Jersey.  Campbell  v.  Gard- 
ner, 11  N.  J.  Eq.  423   (1857). 

New  York.  Laight  v.  Pell,  1 
Edw.  eh.  577  (1833);  Eequa  v.  Kea, 
2  Paige  339   (1831). 

Accldfent:  Seaman  v.  Eiggins,  2 
N.  J.  Eq.  214   (1839). 

Surprise:  Barker  v.  Eichardson, 
41  N.  J.  Eq.  656  (1886). 

A  resale  may  be  ordered  where 
the  purchaser  neglects  to  comply 
with  the  terms  of  the  sale  within  a 
teasonable  time.  Clark  v.  Hall,  7 
Paige   (N.  Y.)   386    (1839). 

Where  fraud  or  mistake  is  relied 
on  by  a  purchaser  at  a  judicial  sale 
after  the  same  has  been  confirmed, 
it  must  be  clearly  and  distinctly 
charged  and  proved.  Locke  v. 
Keiler,  90  Miss.  3  (1907);  Eedd  v. 
Dyer,  83  Va.  331,  5  Am.  St.  Eep. 
272  (1887). 


A  judicial  sale  will  not  be  set 
aside  for  mistake  of  law.  Eraser 
V.  Eraser,  128  111.  App.  73  (1907); 
Hayes  v.  Steger,  29  X.  J.  Eq.  196 
(1878). 

Or  for  a  mistake  due  to  the  neg- 
ligence of  the  party  complaining. 
Bag  Co.  V.  Carr,  116  Md.  541 
(1911);  Hayes  v.  Steger,  supra; 
Long  V.  Weller,  29  Gratt.  (Va.) 
347  (1877). 

55.  Seaman  v.  Eiggins,  2  X.  J. 
Eq.  214  (1839). 

56.  House  v.  Walker^  4  Md.  Ch. 
62  (1853);  White  v.  Zust,  28  N.  J. 
Eq.  108  (1877);  Mott  v.  Walklej-, 
3    Edw.    Ch.    (X.    Y.)    590    (1842^). 

57.  Illinois.  Sowards  v.  Pritchett, 
37  111.  517   (1865). 

Mississippi.  Mitchell  v.  Harris, 
45  Miss.  314  (1870). 

New  Jersey.  Eberhart  v.  Gil- 
christ, 11  X.  J.  Eq.  170  (1856); 
Wetzler  v.  Schaumann,  24  X.  J. 
Eq.  60  (1873). 

Tennessee.  Xewland  v.  Gaines,  1 
Heisk.  720  (1870). 

United  States.  .James  v.  Milwau- 
kee R.  Co.,  6  Wall.  752  (1S67). 

58.  See  Chap.  VI,  "Bills  Xot 
Original,"  Sec.  151,  ante,  p.  295. 


DECREES 


689 


at  sales  under  decrees,  if  not  already  parties  to  the  suit, 
are  regarded  as  quasi  parties  so  as  to  be  under  the  con- 
trol of  the  court. ^'^  Such  a  purchaser  may  therefore  be 
compelled  by  the  court  to  i^erform  his  agreement  bj^  writ 
of  attachment,*"'  or  the  court  may  order  the  estate  to  be 
resold  and  compel  the  purchaser  to  pay  both  the  expenses 
arising  from  his  breach  of  agreement  and  the  resale  and 
also  any  deficiency  which  may  arise  on  the  second  sale.*^^ 
The  parties  in  interest  may  file  a  bill  for  specific  per- 
formance against  the  purchaser  who  neglects  to  complete 
the  purchase.*^-  Unless  the  purchaser  buys  at  his  own 
risk,  however,  he  will  not  be  compelled  to  complete  the 
purchase  where  the  title  does  not  pass,  or  is  defective, 
or  where  the  premises  are  encumbered  or  when  he  can- 
not obtain  possession,^^  or  where  for  any  other  reason  he 
would  not  receive  what  he  bargained  for  and  had  a  right 
to  expect.^* 


59.  Silver  v.  Campbell,  25  N.  J. 
Eq.  465   (1875). 

60.  Florida.  Allied  v.  McGa- 
hagan,  39  Fla.  118  (1897). 

Maryland.     Andrews  v.  Scottan, 

2  Bland  (Md.)  629  (1.828);  Eich- 
ardson  v.  Jones,  3  Gill  &  J.  163,  22 
Am.  Dec.  293  (1831). 

New  Jersey.  M 'Carter  v.  Fiuck, 
55  N.  J.  Eq.  245  (1897). 

Tennessee.     Dibrell  v.  Williams, 

3  Coldw.  (Tenn.)  528  (1866)  (even 
against  executor  or  purchaser  on 
notice). 

Virginia.  Eobertson  v.  Smith,  94 
Va.  250,  64  A.  S.  R.  708  (1897). 

United  States.  Camden  v.  May- 
hew,  129  U.  S.  73  (1888). 

The  usual  method  of  procedure  is 
by  order  to  show  cause  why  attach- 
ment should  not  issue. 


61.  Stuart  v.  Gay,  127  U.  S.  518 
(1887) ;  Camden  v.  Mayhew,  129  U. 
S.  73  (1888).  In  Andrews  v.  Scot- 
ton,  2  Bland  (Md.)  829  (1828),  it 
was  held  that  where  bonds  or  notes 
were  given  for  the  purchase  money, 
the  payment  of  the  same  could  be 
compelled  either  by  process  of  at- 
tachment for  contempt,  or  a  sale  of 
the  property  grounded  on  equitable 
lien,  or  by  an  action  at  law  upon 
the  bonds  or  notes. 

62.  Bowne  v.  Ritter,  26  N.  J. 
Eq.  456   (1875). 

63.  Grover  v.  Hugell,  3  Russ. 
(Eng.  Ch.)  428;  McGown  v.  Wil- 
kins,  1  Paige  (N.  Y.)  120  (1828); 
Morris  v.  Mowatt,  2  Paige  (N.  Y.) 
586  (1831). 

64.  Seaman  v.  Hicks,  8  Paige 
(N.  Y.)  655   (1841). 


Whitehouse  E.  P.  Vol.  I — 44 


CHAPTER  XXIV 

THE  WRIT  NE  EXEAT 

§  428.  General  nature.  An  important  process  for  secur- 
ing the  collection  of  a  money  decree  is  the  writ  ne  exeat 
repuhlica.  This  writ  is  a  process  issued  by  a  state  court 
of  equity  to  prevent  a  person  from  leaving  the  state,  or 
by  a  Federal  court  to  prevent  him  from  leaving  the 
United  States.^  It  was  originally  a  writ  of  high  pre- 
rogative but  it  is  now  an  ordinary  process  issuing  as  a 
matter  of  right.^  In  some  of  the  so-called  "code  states" 
it  has  been  abolished,^  but  in  most  states  ^  it  still  exists 


1.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1698,  1699  note  a. 

It  can  only  be  issued  by  those 
who  exercise  the  ordinary  judicial 
power  of  courts.  Bassett  v.  Brat- 
ton,  86  111.  152  (1887);  Bailey  v.' 
Caldwell,  51  Mich.  217   (1883). 

A  bankruptcy  court  has  power  to 
issue  the  writ.  In  re  Cohen,  137 
Fed.  999   (1905). 

2.  Eice  V.  Hale,  5  Cush.  (Mass.) 
238  (1849);  Samuel  v.  Wiley,  50  N. 
H.  353   (1870). 

3.  Either  by  statute  or  judicial 
construction,  as  being  contrary  to 
the  spirit  of  American  institutions. 
Such  is  the  case  in  Arkansas,  Cali- 
fornia, New  York  and  Ohio.  But  a 
constitutional  or  statutory  provi- 
sion abolishing  imprisonment  for 
debt  is  not  alone  sufficient  to  de- 
prive courts  of  equity  of  the  power 
to  issue  a  ne  exeat.  Eice  v.  Hale, 
5  Cush,  (Mass.)  238  (1849).  In 
some   states   however   these   provi- 


sions are  construed  to  restrict  the 
power  to  issue  the  writ  as  it  ex- 
isted at  common  law.  Malcolm  v. 
Andrews,  68  111.  100  (1873);  Moore 
V.  Valda,  151  Mass.  363,  7  L.  E.  A. 
396  (1890);  Badger  v.  Eeed,  39 
Mich.  773  (1878);  Adams  v.  Whit- 
comb,  46  Vt.  708  (1874).  In  Ten- 
nessee the  power  to  issue  it  was 
considered  doubtful  under  such  a 
constitutional  provision.  See  note 
to  Smith  v.  Koontz,  4  Hayw. 
(Tenn.)   189   (1817). 

4.  In  Carter  v.  Porter,  71  Me. 
167,  171  (1880),  a  bill  seeking  a 
partnership  accounting  and  pay- 
ment of  the  balance  found  due  was 
inserted  in  a  writ  of  attachment, 
and  the  defendant  was  arrested 
thereon  by  virtue  of  the  statute 
providing  for  the  arrest  of  a  debtor 
about  to  depart  and  reside  beyond 
the  limits  of  the  state  with  prop- 
erty more  than  sufficient  for  his 
immediate  support.     The  court  held 


690 


THE  WRIT  NE  EXEAT 


691 


and  is  resorted  to  for  the  purpose  of  obtaining  equitable 
bail.5 

§  429.  In  what  cases  issued.  The  writ  ne  exeat  may 
be  issued  wherever  there  is  a  definite  equitable  debt 
existing  and  due  from  defendant  at  the  time,^  and  the 
defendant  is  about  to  leave  the  state  so  that  the  payment 
of  the  debt  is  liable  to  be  defeated.^    It  does  not  matter 


that  this  could  not  be  done,  say- 
ing: "We  can  hardly  infer  the 
right  to  arrest  in  the  absence  of 
any  express  provision  in  the  stat- 
ute giving  it,  more  especially  as  the 
writ  of  ne  exeat,  which  has  never 
been  abolished  in  our  state,  would 
seem  to  afford  not  only  an  appro- 
priate but  amply  remedy  to  secure 
the  full  performance  of  the  decree 
of  the  court."  This  appears  to  be 
the  only  expression  of  the  Maine 
court  on  the  subject. 

See  also  Malcolm  v.  Andrews,  68 
111.  101  (1873);  Cox  v.  Scott,  5 
Har.  &  J.  (Md.)  384  (1822);  Duns- 
moor  V.  Bankers'  Surety  Co.,  206 
Mass.  23  (1910) ;  Samuel  v.  Wiley, 
50  N.  H.  353  (1870);  Adams  v. 
Whitcomb,  46  Vt.  708  (1874). 

5.  Samuel  v.  Wiley,  50  N.  H.  353 
(1870);  Adams  v.  Whitcomb,  46  Vt. 
708  (1874). 

In  the  Federal  courts  direct  au- 
thority to  issue  the  writ  is  derived 
from  U.  S.  Eev.  St.  (1878)  Par. 
716  (U.  S.  Comp.  St.  (1901),  page 
580). 

6.  Eico  V.  Gualtier,  3  Atk.  (Eng. 
Ch.)  501;  Jackson  v.  Petrie,  10  Ves. 
Jr.  164;  Rice  v.  Hale,  5  Cush. 
(Mass.)  238,  241  (1847);  Williams 
V.  Williams,  3  N.  J.  Eq.  130  (1834). 
The  sum  must  be  definite,  and  not 
mere  unliquidated  damages.  Mc- 
Donough  V.  Gaynor,  18  N.  J.  Eq. 
249  (1867);  Rhodes  v.  Cousins,  6 
Rand.  188,  18  Am.  Dec.  715  (1828); 


Graham  v.  Stucken,  4  Blatchf.  50 
(1857). 

In  Illinois,  the  writ  may  issue 
upon  either  legal  or  equitable  de- 
mands and  whether  actually  due  or 
not,  if  fairly  and  bona  fide  in  ex- 
pectancy at  the  time  of  filing  the 
application.  J.  &  A.  1  7607,  Hurd  's 
Stat.  Chap.  97,  Sec.  1. 

A  writ  ne  exeat  may  be  issued 
by  a  court  of  equity  in  a  suit  by  a 
vrife  for  maintenance,  before  a  de- 
cree is  rendered  fixing  the  amount 
to  be  paid.  Brooks  v.  State,  43 
Fla.  461,  99  Am.  St.  Rep.  119 
(1901). 

In  Massachusetts  it  is  not  issued 
in  aid  of  a  legal  as  distinguished 
from  an  equitable  process,  or  for 
the  purpose  of  obtaining  security 
from  a  defendant  in  an  action  at 
law.  Moore  v.  Valda,  151  Mass. 
363,  7  L.  E.  A.  396   (1890). 

7.  Etches  V.  Lance,  7  Ves.  Jr 
(Eng.  Ch.)  417;  Tomlinson  v.  Har 
rison,  8  Ves.  Jr.  32;  Stewart  v 
Graham,  19  Ves.  Jr.  313;  Yule  v 
Yule,  10  N.  J.  Eq.  138  (1854) 
Mattocks  v.  Tremain,  3  Johns.  Ch 
(N.  Y.)  75  (1817).  Mr.  Beach  in 
his  Mod.  Eq.  Pr.  610,  states  that 
"it  must  be  shown  that  the  defend- 
ant is  about  to  leave  the  country 
to  avoid  payment"  citing  Orme  v. 
MePherson,  36  Ga.  571  (1867); 
Mitchell  V.  Bunch,  2  Paige  (N.  Y.) 
606  (1831);  Ramsay  v,  Joyce,  1 
McMull    Ch.    (S.    C.)    236    (1840); 


692 


EQUITY  PRACTICE 


Graham  v.  Stucken,  4  Blatchf.  50 
(1857);  Dean  v.  Smith,  23  Wis.  483 
(1868);  and  see  to  the  same  effect, 
R.  I.  Eq.  Rule  33.  But  the  au- 
thorities generally  do  not  support 
this.  See  Tonilinson  v.  Harrison,  8 
Ves.  Jr.  32;  Stewart  v.  Graham,  19 
Ves.  Jr.  313;  Yule  v.  Yule,  10  N.  J. 
Eq.  138  (1854).  On  principle  it 
should  not  be  necessary  to  show 
that  the  defendant  is  leaving  the 
state  with  the  express  purpose  and 
intention  of  avoiding  payment,  so 
long  as  the  possibility  of  obtaining 
satisfaction  is  actually  in  danger 
of  being  defeated  by  his  departure. 
The  defendant  may  not  leave  with 
such  a  purpose  and  yet  the  collec- 
tion of  the  debt  may  be  just  as 
much  endangered  by  his  departure. 
Even  if  that  be  his  purpose,  it 
would  in  many  cases  be  extremely 
difficult  to  prove  it,  and  the  plain- 
tiff would  then  be  deprived  of  the 
security  to  which  he  was  rightfully 
entitled.  In  short,  the  essential 
ground  for  obtaining  the  writ  is 
not  so  much  the  purpose  of  the 
defendant  as  the  danger  of  defeat- 
ing the  claim.  The  intent  of  the 
defendant  as  shown  by  his  decla- 
rations or  otherwise  is  valuable 
evidence  tending  to  show  that  dan- 
ger, but  a  case  justly  requiring  the 
use  of  the  writ  ne  exeat  in  order 
to  secure  a  bail  bond  for  the  satis- 
faction of  plaintiff's  claim  may 
frequently  be  established  by  show- 
ing simply  that  the  defendant  is 
about  to  depart  and  reside  beyond 
the  limits  of  the  state.  It  does  not 
appear,  however,  that  it  is  neces- 
sary to  allege  or  show  that  the  de- 
fendant is  intending  to  reside 
abroad  permanently,  provided  the 
danger  of  the  claim's  being  de- 
feated   can    be    otherwise    shown. 


Thus  it  is  held  that  it  makes  no 
difference  that  the  defendant  is 
going  abroad  in  the  course  of  his 
ordinary  business.  Stewart  v. 
Graham,  19  Ves.  313;  Etches  v. 
Lance,  7  Ves.  417;  Baker  v.  Du- 
maresque,  2  Atk.  66;  McDonough 
v.  Gaynor,  18  N.  J.  Eq.  249  (1867). 
Neither  is  it  necessary  to  allege 
that  the  debtor  is  about  to  take 
with  him  property  more  than  suffi- 
cient for  his  immediate  support  as 
in  the  case  of  arrest  on  mesne 
process  in  an  action  at  law  under 
some  statutes  against  debtors  about 
to  leave  the  state.  But  in  Fisher  v. 
Stone,  4  111.  68  (1841),  it  was  held 
that  the  petition  should  allege  that 
the  defendant  was  about  to  remove 
from  the  state  without  leaving  any 
property  behind.  Such  a  require- 
ment seems  sound  on  principle, 
since  if  sufficient  property  is  left 
behind  the  claim  is  not  endangered 
by  the  debtor's  departure.  In 
Boehm  v.  Wood,  Turn.  &  R.  (Eng. 
Ch.)  338,  and  Goodwin  v.  Clarke, 
2  Dick.  497,  the  writ  was  granted 
on  a  bill  for  specific  performance 
although  the  defendant  had  other 
property  besides  that  which  was 
the  subject  of  the  suit. 

In  Illinois  where  the  constitution 
forbids  imprisonment  for  debt,  un- 
less upon  refusal  to  deliver  up  his 
estate  for  the  benefit  of  his  cred- 
itors in  such  manner  as  shall  be 
prescribed  by  law  or  in  cases  where 
there  is  no  strong  presumption  of 
fraud,  it  is  held  that  the  act  of  a 
debtor  in  endeavoring  to  place  his 
unexempt  property  beyond  the 
reach  of  his  creditors  is  such  a 
fraud  as  will  justify  the  issuance 
of  a  writ  of  ne  exeat.  Garden  City 
Sand  Co.  v.  Gettins,  200  111.  268 
(1902). 


THE  WRIT  NE  EXEAT 


693 


however  that  relief  may  also  be  had  concurrently  at  law.^ 
The  writ  may  be  granted  for  an  account,''  or  to  recover  the 
amount  due  on  a  lost  bond/"  or  to. compel  sjoecific  per- 
formance.^^ 

§  430.  How  obtained.  The  application  for  a  writ  ne 
exeat  may  be  made  by  a  prayer  in  the  bill  ^^  aided  by 
oral  motion,  or  upon  petition  verified  by  oath.  The  writ 
may  be  applied  for  at  any  stage  of  the  proceedings  after 
the  bill  is  filed,^^  and  it  is  even  held  that  it  may  be 
granted  on  application  made  before  the  bill  is  filed.^*    It 


8.  But  see  Brophy  v.  Shephard, 
124  111.  App.  512  (1906),  citing 
Victor  Scale  Co.  v.  Shurtleff,  81  111. 
313  (1876),  holding  that  the  writ 
of  ne  exeat  should  not  issue  when 
purely  legal  process  can  afford  re- 
lief as  ample  and  efficacious. 

9.  MacDonough  v.  Gaynor,  18  N. 
J.  Eq.  249  (1867).  Such  an  ac- 
count must  be  one  having  items  on 
one  side  and  set  off  on  the  other, 
and  must  be  a  series  of  transac- 
tions on  both  sides.  Bellamy  v. 
Hawkins,  16  Fla.  733  (1878);  Car- 
ter V.  Bailey,  64  Me.  458   (1874). 

10.  Atkinson  v.  Leonard,  3  Bro. 
C.  C.   (Eng.  Ch.)  218. 

11.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1701;  Boehm  v.  Wood,  Turn.  & 
Euss.  (Eng.  Ch.),  332;  Goodwin  v. 
Clarke,  2  Dick.  497.  Even  though 
the  land  is  out  of  the  state.  Enos 
V.  Hunter,  9  111.  211  (1847).  The 
following  authorities,  however, 
hold  that  the  writ  is  never  issued 
to  enforce  specific  performance  of 
an  agreement  except  when  there  is 
a  money  demand  to  be  enforced  in 
equity.  Raynes  v.  Wyse,  2  Mer. 
473;  Blaydes  v.  Calvert,  2  Jac.  & 
Co.  213;  Cowdin  v.  Cram,  3  Edw. 
Ch.   (N.  Y.)   232   (1837). 

12.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1706;  Bassett  v.  Bratton,  86  111. 


152  (1877);  Samuel  v.  Wiley,  50 
N.  H.  353  (1870).  When  the  oc- 
casion for  the  use  of  the  writ  was 
known  to  the  plaintiff  at  the  time 
of  drawing  the  bill  a  prayer  for 
the  same  should  be  inserted 
therein,  otherwise  the  prayer  is  not 
required.  Dan.  Ch.  Pr.  (6th  Am. 
ed.),  p.  1705.  When  the  occasion 
for  it  arises  after  the  bill  is  filed  it 
may  be  obtained  on  petition  with- 
out amendment  of  the  bill.  Gilbert 
V.  Colt,  Hopkins  Ch.  (N.  Y.)  498 
(1825). 

13.  Bassett  v,  Bratton,  86  111.  152 
(1879);  Samuel  v.  Wiley,  50  N.  H. 
353  (1870). 

14.  Clark  v.  Clark,  51  N.  J.  Eq. 
404  (1893).  The  former  rule  both 
in  England  and  in  this  country  was 
that  the  writ  could  not  be  granted 
until  after  the  bill  had  been  filed. 
Hughes  V.  Ryan,  Beat.  (Ir.  Ch.) 
327;  Ex  -parte  Brunker,  3  P.  Wms. 
312;  Bylandt  v.  Bylandt,  6  N.  J. 
Eq.  28  (1846).  The  reason  was 
that  if  the  affidavit  was  false  the 
affiant  could  not  be  convicted  of 
perjury,  since  at  common  law  the 
false  swearing  must  be  in  some  ju- 
dicial proceeding  to  constitute  the 
offence.  But  in  Clarke  v.  Clarke  it 
was  held  that  under  the  New  Jer- 
sey statute  it  was  sufficient  if  the 


694 


EQUITY  PRACTICE 


may  unquestionably  be  granted  after  final  decree.^^  The 
application  may  be  made  ex  parte  without  notice  to  the 
defendants,  since  otherwise  the  very  purpose  of  the  writ 
might  be  defeated.^^  It  is  not  necessaiy  that  the  defend- 
ants should  actually  be  within  the  state  at  the  time  the 
application  is  made,  since  he  may  return  and  depart  again 
immediately.^' 

§  431.  The  affidavit.  The  application  for  the  writ 
must  be  supported  by  an  affidavit  made  by  the  plaintiff 
or  some  person  conversant  with  the  facts.^^    The  affidavit 


false  swearing  was  in  an  aflBdavit 
made  for  any  lawful  purpose  or 
necessary  or  proper  to  be  used  in 
any  court  of  the  state,  and  there- 
fore as  the  law  now  stands  that  the 
writ  could  be  granted  on  an  affi- 
davit made  before  the  filing  of  the 
bill. 

In  Florida  the  statutes  provide 
that  no  writ  of  ne  exeat  shall  be 
granted  until  a  bill  sworn  or  sup- 
ported by  affidavit  be  filed  praying 
for  such  writ,  except  in  the  special 
cases  and  for  the  special  causes  in 
which  said  writs  are  authorized  by 
the  practice  of  the  courts  of  the 
United  States  exercising  equity  ju- 
risdiction. General  Statutes  1906, 
Art.  12,  Sec.  1921. 

In  Illinois  no  writ  of  ne  exeat 
shall  be  granted  but  upon  bill  or 
petition  filed,  and  affidavit  of  the 
allegations  therein  contained.  J.  & 
A.  117611,  Kurd's  Stat.  Chap. 
97,  Sec.  5. 

15.  Moore  v.  Hudson,  6  Madd. 
(Eng.  Ch.)  218;  Mitchell  v.  Bunch, 
2  Paige  (N.  Y.)  606  (1831);  Lewis 
v.  Shainwald,  7  Sawyer  (U.  S.) 
403  (1881).  It  is  not  a  mere  pro- 
visional remedy  which  expires  on. 
the  determination  of  the  suit,  but 
should  continue  in  force  until  the 
judgment   is   satisfied   or  until   the 


writ  is  dissolved  or  proper  security 
given.  (Ibid.)  The  application 
should,  however,  be  made  aa 
promptly  as  possible.  Jackson  v. 
Petrie,   10  Ves.  Jr.   164. 

16.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1706;  Moore  v.  Hudson,  6  Madd. 
218;  Samuel  v.  Wiley,  50  N.  H. 
353   (1870). 

It  is  held  in  Ehode  Island  that 
the  Superior  Court  may  in  its  dis- 
cretion refuse  to  issue  the  writ  un- 
til a  satisfactory  bond  has  been 
filed  running  to  the  defendant,  and 
conditioned  for  the  payment  of 
costs  and  damages  sustained  from 
the  issuance  of  the  writ.  Jastram 
V.  McAuslan,  29  R.  I.  471  (1909). 
See  Florida  Gen.  Stat.  Sec.  1919, 
and  111.  J.  &  A.  117611,  Hurd's 
Stat.  Chap.  97,  Sec.  5,  to  the  same 
effect. 

17.  Parker  v.  Parker,  12  N.  J. 
Eq.  105   (1858). 

The  modern  rule  permits  its  use 
upon  a  proper  showing  against  any 
debtor  within  the  jurisdiction, 
whether  a  resident  or  not,  and 
against  a  non-resident  even  when 
temporarily  within  the  jurisdiction. 
MacDonough  v.  Gaynor,  18  N.  J. 
Eq.   249    (1867). 

18.  McGee  v.  McGee,  8  Ga.  295 
(1850).      Affidavit    by    an    agent: 


THE  WRIT  XE  EXEAT 


695 


must  allege  positively  that  there  is  an  equitable  debt 
due  for  a  definite  amount;  ^^  that  the  defendant  is  about 
to  leave  the  state,^"  (setting  forth  the  grounds  for  such 
allegation);  21  and  that  the  plaintiff's  debt  will  thereby 
be  endangered.-- 

§  432.  Form  of  writ  The  writ  is  issued  by  the  court 
under  its  seal,  and  is  signed  by  the  clerk  and  directed 
to  the  sheriffs  of  the  state  or  their  deputies.  It  recites 
that  the  defendant  in  the  case  is  indebted  to  the  plaintiff' 
and  that  he  designs  going  quickly  into  parts  without  the 
state,  to  the  damage  of  the  plaintiff,  and  commands  them 
to  cause  the  defendant  to  give  bail  in  a  certain  amount.-" 
conditioned  that  he  will  not  depart  from  the  state  with- 


Onne  v.  McPherson,  36  Ga.  571 
(1867).  By  the  committee  of  a 
lunatic:  Stewart  v.  Graham,  19 
Ves.  Jr.  313.  By  an  infant  eight- 
een years  of  age:  Eoddam  v.  Heth- 
erington,  5  Ves.  91. 

19.  Eice  V.  Hale,  5  Cush.  (Mass.) 
238  (1847);  Yule  v.  Yule,  10  N.  J. 
Eq.  138  (1854);  Bhodes  t.  Cousins, 
6  Band.  188,  18  Am.  Dec.  715 
(1828).  In  a  bill  for  an  account  it 
is  sufficient  for  the  affiant  to  swear 
to  the  best  of  his  knowledge  and 
belief.  Bico  v.  Gualtier,  3  Atk. 
501;  aayton  v.  MitcheU,  1  Del. 
Ch.  32  (1818);  MacDonough  v. 
Gaynor,  18  N.  J.  Eq.  249  (1867); 
Thorne  v.  Halsey,  7  Johns.  Ch. 
(X.  Y.)  189  (1823).  It  is  sufficient 
in  the  affidavit  to  refer  to  the  facts 
charged  in  the  bill  as  showing  the 
grounds  of  the  plaintiff's  demand, 
without  restating  them.  Clayton  v, 
Mitchell,  1  Del.  Ch.  32  (1S18).  In 
Florida  the  bill  must  be  filed  under 
oath  praying  for  such  writ,  except 
as  authorized  by  practice  of  United 
States  courts.   Gen.  Stat.,  Sec.  1921. 

20.  Etches  v.  Lance,  7  Ves.  Jr. 
417;    Yule   v.    Yule,    10   X.   J.    Eq. 


138  (1854).  Or  that  he  has  made 
declarations  or  threats  to  that  ef- 
fect or  other  facts  showing  such 
purpose.     {Ibid.) 

21.  Ad  allegation  that  the  peti- 
tioner believes  that  the  defeniiant 
is  about  to  depart  from  the  state, 
without  stating  the  grounds  on 
which  the  belief  is  founded,  is  in- 
sufficient. Bobinson  v.  Bobinson, 
21  E.  I.  81,  1009  (1898). 

22.  Etches  v.  Lance,  7  Ves.  Jr. 
417:  Mattocks  v.  Tremain,  3  Johns. 
Ch.  (X.  Y.)  75  (1817).  It  need  not 
be  alleged  that  the  defendant  is 
leaving  in  order  to  avoid  the  juris- 
diction of  the  court  or  the  payment 
of  the  demand.  Tomlinson  v.  Har- 
rison, 8  Ves.  Jr.  32;  Etches  v. 
Lance,  7  Ves.  417;  Stewart  v.  Gra- 
ham, 19  Ves.  Jr.  313;  Atkinson  v. 
Leonard,  3  Bro.  C.  C.  218;  Boehm 
T.  Wood.  Turn.  &  B.  332:  Bhodes 
V.  Cousins,  6  Band.  (Va.)  188 
(1S2S):  Conira,  Jastram  v.  McAus- 
lan,  29  B.  I.  471  (1909);  E.  L  Eq. 
Eule  33.    See  See.  429,  ante,  p.  691. 

23.  Gilbert  v.  Colt,  Hopk.  Ch. 
(X.  Y.)  500  (1825).  See  next  sec- 
tion, post,  p.  696. 


696 


EQUITY  PRACTICE 


out  leave  of  the  court,  and  for  want  of  such  bail  that 
the  defendant  be  committed  to  prison.  The  rules  which 
govern  the  service  of  ordinary  process  are  applicable  to 
the  writ  of  ne  exeat.^^  It  may  be  made  returnable  at  a 
rule  day  or  the  first  day  of  a  term  of  court  in  the  same 
manner  as  other  processes.-^ 

§  433.  The  bail  bond.  The  condition  of  the  bail  bond 
which  must  be  given  by  the  defendant  in  a  writ  of  ne 
exeat,  in  order  to  release  his  person  from  custody,  is  that 
he  will  not  go  beyond  the  jurisdiction  of  the  court 
without  its  permission.^®  The  amount  of  the  bond  is 
determined  by  the  court,  but  should  be  sufficient  to  cover 
the  plaintiff's  debt,  costs  and  interest,^"  and  the  sheriff 
must  take  a  bond  for  that  amount  without  any  addi- 
tions.-* 


24.  Jewett  V.  Bonman,  27  N.  J. 
Eq.  275  (1876). 

25.  Crocker  v.  Duukin,  6  Blaekf. 
(Ind.)  535  (1843);  Fitzgerald '  v. 
Grey,  61  Ind.  109   (1878). 

26.  DeCarriere  v.  Calonne,  4  Ves. 
577. 

In  Illinois  the  condition  of  the 
bond  is  that  he  will  not  depart  the 
state  without  leave  of  the  court, 
and  that  he  will  render  himself  in 
execution  to  answer  any  judgment 
or  decree  which  the  court  may  ren- 
der against  him.  J.  &  A.  H  7614, 
Hurd's  Stat.  Ch.  97,  Sec.  8. 

When  bail  has  been  given,  leave 
of  absence  may  be  granted  by  con- 
sent of  parties.  Dupont  v.  Goflfe, 
1  Des.   (S.  C.)   143   (1787). 

Where  the  restraint  of  a  writ 
ve  exeat  interferes  with  the  free- 
dom of  the  defendant's  movements 
in  meeting  pressing  business  en- 
gagements out  of  the  state,  the 
court  will  entertain  a  motion  for 
the  substitution  of  a  bond  to  an- 
swer  the   decree.      Chew   v.    Chew, 


69  Atl.  1079   (X.  J.  1908),  and  see 
N.  J.  Eq.  Kule  192. 

In  Florida  and  Illinois  by  stat- 
ute absence  from  the  state  is  not 
a  breach  of  the  bond  if  the  de- 
fendant returns  when  necessary  to 
obey  the  orders  of  the  court.  Fla. 
Gen.  Stat.  Sec.  1923;  111.  J.  &  A. 
H  7614,  Hurd's  Stat.  Ch.  97,  Sec.  8. 

27.  Gilbert  v.  Colt,  Hopk.  Ch. 
(N.  Y.)  500  (1825);  Gleason  v. 
Bisby,  Clarke's  Ch.  (X.  Y.)  551 
(1841). 

28.  Gilbert  v.  Colt,  Hopk.  Ch. 
(N.  Y.)  500  (1825).  In  Elliott  v. 
Elliott,  36  Atl.  95  (N.  J.  Eq. 
1897)  it  was  held  that  a  court  of 
equity  will  retain  proceedings  on 
a  ne  exeat  bond  and  enforce  the 
liability  of  the  obligors.  In  Burnap 
V.  Wight,  14  111.  301  (1853),  it  was 
held  that  damages  against  the 
plaintiff  in  7ie  exeat  could  not  be 
recovered  in  an  action  on  the  bond, 
but  only  in  an  action  for  malicious 
prosecution  or  false  imprisonment. 

Bail    in    7ie    exeat    proceedings    is 


THE  WRIT  NE  EXEAT 


697 


§434.  Discharge  of  the  writ.  A  defendant  wlio  has 
been  arrested  on  a  writ  ne  exeat  has  three  courses  open 
to  him.  First  he  may  give  the  required  bail  bond  to  the 
sheriff,  in  order  to  release  his  person  from  custody,  and 
may  allow  the  writ  and  bond  to  stand  and  may  abide  the 
final  decree.  Secondly,  he  may  either  with  or  without 
giving  the  bail  bond  to  the  sheriff,  apply  at  once  to  the 
court  by  motion,-^  in  writing  and  notice  to  the  adverse 


closely  analogous  to  bail  in  actions 
at  law,  and  there  is  no  reason  why 
it  should  not  be  governed  in  gen- 
eral by  the  same  rules.  Dunsmoor 
V.  Bankers'  Surety  Co.,  206  Mass. 
23    (1910). 

The  liability  of  sureties  cannot 
be  increased  by  a  substituted  bond 
beyond  what  they  originally  agreed 
to  assume  and  the  order  for  the 
writ  requires,  and  which  imposes 
upon  them  conditions  which  cannot 
be  enforced  against  them  so  long 
ati  the  defendant  does  not  break  the 
conditions  for  his  appearance. 
Wauters  v.  Van  Vorst,  28  N.  J.  Eq. 
103  (1877). 

A  surety  will  not  be  discharged 
before  final  decree  under  a  bond 
conditioned  that  defendant  "will 
abide  and  perform  the  orders  and 
decrees  of  the  court  in  the  cause" 
given  by  defendant  by  agreement 
with  plaintiff,  and  upon  which  he 
was  discharged  on  ne  exeat  upon 
defendant  placing  himself  within 
the  jurisdiction  of  the  court.  In  re 
Griswold,   13   E.   I.   125    (1880). 

Sureties  cannot  surrender  the 
principal  into  the  jurisdiction  of 
court  before  final  decree.  Ihid. 
Contra,  Florida,  Gen.  St.  Sec.  1924.. 

The  liability  of  the  surety  ends 
when  the  defendant  is  in  the  cus- 
tody of  court  under  final  decree. 
Johnson  v.  Clendenin,  5  Gill.  &  J. 
(Md.)   463    (1833). 


A  bond  filed  by  a  bankrupt  to 
secure  his  release  from  arrest  under 
a  writ  of  ne  exeat,  and  conditioned 
to  be  void  if  he  will  not  go  or  at- 
tempt to  go  into  parts  beyond  the 
jurisdiction  of  the  court  and  not 
depart  from  the  district  without 
leave,  is  not  a  mere  bail  bond,  but 
is  broken  by  an  attempt  to  go  be- 
yond the  jurisdiction  without  leave. 
Be  Appel,  163  Fed.  1002,  20  L.  E. 
A.  76   (1908). 

29.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1712.  The  motion  should  be 
seasonably  made.  It  may  be  made 
before  answer.  Dithmar  v.  Dith- 
mar,  69  N.  J.  Eq.  533  (1905).  Or 
even  before  the  defendant  is  ar- 
rested. Lewis  v.  Lewis,  68  Law 
Times  Eep.  (N.  S.)  198.  If  not 
made  until  after  cause  is  set  for 
final  hearing  it  will  be  refused. 
Miller  v.  Miller,  1  N,  J.  Eq.  386 
(1831).  The  motion  may  be  sup- 
ported by  affidavit  and  met  by 
counter  affidavit  on  the  part  of  the 
plaintiff.  Flack  v.  Holm,  1  Jae. 
&  W.  414. 

Where  a  complaint  showed  that 
the  defendant  restrained  by  the 
writ  of  ne  exeat  had  expressed  an 
intention  of  leaving  the  jurisdic- 
tion and  disclosed  such  home  con- 
ditions as  would  naturally  compel 
the  defendant  to  go  away,  a  mo- 
tion to  discharge  the  writ  would  be 
overruled,    though     the    defendant 


698 


EQUITY  PRACTICE 


party,  to  liave  the  writ  discharged  absolutely  on  the 
ground  that  it  was  irregularly  or  improperly  granted. ^'^ 
In  such  case  if  bond  has  been  given  to  the  sheriff,  the 
application  should  ask  to  have  the  bond  given  up  and 
cancelled.^ ^  The  court  will  then  either  discharge  the 
writ  absolutely,  or  it  will  in  its  discretion,  if  no  bond  has 
been  given,  require  the  defendant  as  a  condition  of  dis- 
charging the  writ  to  give  security  to  abide  and  perform 
the  decree.^-  Thirdly,  the  plaintiff  may  without  moving 
for  a  discharge  on  the  ground  that  the  writ  was 
improperly  issued  and  without  giving  bail  to  the  sheriff, 
voluntarily  pay  into  court  the  amount  of  the  plaintiff's 
claim  2^  or  give  other  security  to  abide  the  final  decree, 
and  the  writ  will  then  be  discharged  as  of  course.^^ 


denied  that  he  ever  had  or  ex- 
pressed a  purpose  to  leave  the 
state.  Chew  v.  Chew,  69  Atl.  1079 
(N.  J.  Ch.  1908). 

30.  Grant  v.  Grant,  3  Euss.  (Eng. 
Ch.)  598,  602;  Hyde  v.  Whitfield, 
19  Ves.  342;  Cary  v.  Cary,  39  N.  J. 
Eq.  3  (1884).  The  mere  counter 
affidavit  of  the  defendant  denying 
his  intention  to  depart  is  not  suffi- 
cient ground  for  discharging  the 
writ.  Houseworth  v.  Hendrickson, 
27  N.  J.  Eq.  60   (1876). 

31.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1712;  Jesup  v.  Hill,  7  Paige 
(N.  Y.)  95  (1838).  The  notice 
should  state  that  the  application 
will  be  made  for  that  purpose. 

32.  MacDonough  v.  Gaynor,  18 
X.  J.  Eq.  249  (1867);  Griswold 's 
Petition,  13  R.  T.  125  (1880). 

33.  Evans  v.  Evans,  1  Ves.  Jr. 
96;  Stewart  v.  Graham,  19  Ves.  Jr. 
31.3. 

34.  Samuel   v.   Wiley,   50   N.   H. 


353  (1870);  Parker  v.  Parker,  12 
X.  J.  Eq.  105  (1858);  Mitchell  v. 
Bunch,  2  Paige  (X.  Y.)  606  (1831); 
(See  note  to  this  ease  containing 
valuable  discussion  of  whole  sub- 
ject of  ne  exeat);  Brayton  v. 
Smith,  6  Paige  (X.  Y.)  489  (1837). 
Griswold 's  Pet.,  13  R.  I.  125  (1880). 
When  the  plaintiff  thus  voluntarily 
applies  to  the  court  and  gives  se- 
curity to  abide  the  decree  without 
reserving  any  rights,  he  waives  his 
right  to  apply  to  have  the  writ  dis- 
charged on  the  ground  of  improper 
allowance,  although  giving  the 
usual  bail  bond  to  the  sheriff  in  the 
first  instance  in  order  to  release  his 
person  from  custody  does  not,  as 
shown  above,  preclude  the  plaintiff 
from  afterward  moving  to  have  the 
writ  discharged  for  improper  issu- 
ance and  the  bond  delivered  up  to 
be  cancelled.  Jesup  v.  Hill,  7 
Paige    (X.  Y.)   95   (1838). 


CHAPTER  XXV 

EQUITABLE  REMEDIES 

§  435.  General  classification.  A  work  on  equity  prac- 
tice would  not  be  complete  without  a  chapter  devoted 
to  the  examination  of  the  remedies  which  equity  juris- 
prudence provides  to  accomplish  the  ends  of  justice,  and 
the  methods  of  applying  those  remedies,  or  in  other 
words,  without  considering  the  tools  which  equity 
employs  and  how  it  uses  them.  Of  course  it  is  one  of 
the  most  characteristic  and  valuable  features  of  a  court 
of  equity  that  it  may  vary  its  decrees  indefinitely  and 
adapt  them  to  all  the  requirements  of  any  particular  case. 
In  one  sense  therefore  the  remedies  which  equity  may 
administer  are  indefinite  and  unlimited.  On  the  other 
hand,  there  are  certain  kinds  of  equitable  remedies  which 
have  become  well  established  and  familiarly  known  by 
distinct  names  and  which  are  commonly  understood  to 
be  designated  whenever  the  term  "equitable  remedies" 
is  employed.  With  this  understanding  of  the  term,  there- 
fore, following  approximately  but  in  a  very  condensed 
form,  the  analysis  adopted  by  Mr.  Pomeroy  in  his  work 
on  equity  jurisprudence,^  and  excluding  those  which  are 

1.  Mr.  Pomeroy  (Sec.  1316)  ar-  legal  or  equitable,  including  refor- 
ranges  all  equitable  remedies  for  mation  and  reexecution,  cancella- 
purposes  of  practical  discussion  tion  and  surrender  or  discharge  of 
into  eight  different  groups,  as  fol-  instruments;  4,  remedies  by  which 
lows:  1,  remedies  which  are  purely  primary  rights  and  interests  are 
ancillary  and  provisional,  including  directly  declared  established,  recov- 
interpleader  and  receivers;  2,  ered,  or  restored,  including  assign- 
purely  preventive  remedies,  com-  ment  of  dower,  establishment  of 
prising  injunctions;  3,  remedies  disputed  boundaries,  partition  of 
which  indirectly  establish  or  pro-  land,  partition  of  personal  property, 
tect   primary   rights   and   interests,  bills     of    peace,    bills     quia    timet, 

699 


700 


EQUITY  PRACTICE 


purely  statutory  or  are  obsolete,  the  equitable  remedies 
may  be  enumerated  as  follows:  Interpleader,  receivers, 
injunctions,  reformation,  cancellation,  partition,  quieting- 
title,  construction  of  wills,  redemption,  foreclosure, 
specific  performance,  marshaling  assets,  reaching  and 
applying  property  of  debtor,  dissolution  of  partnerships, 
contribution,  account,  and  pure  money  recoveries.  These 
remedies  may  be  divided  as  regards  their  relation  to 
remedies  at  law,  into  two  classes,  viz.:  Those  which  are 
exclusively  equitable  in  their  nature  and  those  which  are 
also  employed  by  courts  of  law;  or  in  other  words, 
exclusive  and  concurrent.  Viewing  them,  on  the  other 
hand,  as  to  the  manner  in  which  they  operate,  which 
is  the  more  important  point  of  view  in  a  work  on  equity 
practice,  they  may  be  further  classified  as  in  personam 
or  in  rem. 

§  436.  — Exclusive   and  concurrent.     Those  remedies 


bills  to  quiet  title,  bills  to  estab- 
lish a  will  and  to  construe  a  will, 
statutory  suits  to  quiet  title,  or  to 
remove  a  cloud  from  a  title,  strict 
foreclosure  of  a  mortgage  or 
pledge,  and  redemption  of  mort- 
gages and  pledges;  5,  remedies  by 
which  equitable  obligations  are  spe- 
cifically and  directly  enforced,  com- 
prising specific  performance  of  con- 
tracts, specific  performance  of  obli- 
gations resulting  from  trusts,  and 
specific  enforcement  of  obligations 
arising  from  relations  analogous  to 
trusts,  such  as  suits  against  fidu- 
ciaries, corporations,  executors  and 
administrators;  6,  pecuniary  reme- 
dies enforced  by  a  lien  or  charge 
on  some  specific  property  or  fund, 
embracing  foreclosure  of  mort- 
gages of  real  and  personal  property 
and  of  pledges,  by  judicial  sale,  en- 
forcement of  equitable  liens,  mar- 
shaling of  securities,  enforcement 
of  the  equitable  contracts  of  mar- 


ried women,  and  creditors'  suits; 
7,  general  pecuniary  recoveries,  in- 
cluding suits  by  assignees  of 
choses  in  action,  suits  by  equitable 
assignees  of  a  fund,  suits  by  per- 
sons entitled  to  participate  in  a 
common  fund,  bills  for  contribution 
in  general,  suits  growing  out  of 
suretyship  for  exoneration,  contri- 
bution or  subrogation,  suits  grow- 
ing out  of  partnership,  suits  for 
an  accounting  in  general  and  for 
the  recovery  of  damages;  8,  cer- 
tain additional  remedies  which 
have  been  created  and  conferred 
by  statute  in  several  of  the  states, 
including  suits  for  divorce,  pro- 
ceedings in  the  nature  of  an  inqui- 
sition for  the  appointment  of 
guardians  over  persons  iwn  compos 
and  habitual  drunkards,  statutory 
suits  to  dissolve  and  wind  up  cor- 
porations, or  to  remove  corporate 
officers  for  cause  or  for  the  appoint- 
ment of  officers. 


EQUITABLE  REMEDIES  701 

which  are  afforded  exclusively  by  courts  of  equity  include 
interpleader,  receivers,  injunctions,  reformation,  cancel- 
lation, quieting  title,  construction  of  wills,  redemption, 
specific  performance,  marshaling  assets,  reaching  and 
applying  unattachable  property  and  dissolution  of  part- 
nership. As  to  remedies  of  quieting  title,  specific  per- 
formance, and  reaching  and  applying  unattachable  prop- 
erty, it  is  to  be  noted  that  the  jurisdiction  over  the 
subject  matter  involved  is  concurrent, — the  courts  of  law 
also  providing  relief  though  of  a  less  adequate  nature, 
but  the  peculiar  feature  of  the  remedy  in  each  case  is 
exclusively  equitable. 

Those  remedies,  on  the  other  hand,  which  are  employed 
both  in  equity  and  at  law  are:  Partition,  foreclosure, 
contribution,  account,  and  pure  money  recoveries. 

§  437.  — In  personam  and  in  rem.  It  was  formerly  one 
of  the  fundamental  characteristics  of  a  court  of  chancery, 
that  its  remedies  only  acted  in  personam,  against  the 
person,  and  never  in  rem,  upon  the  subject  matter.  By 
acting  in  personam  upon  the  person  of  the  defendant 
within  the  jurisdiction,  the  court  has  always  had  the 
power  to  compel  a  conveyance  of  property  even  beyond 
the  state,  where  the  case  is  one  of  equitable  cognizance, 
such  as  fraud  or  trust;  and  the  conveyance  in  such  case 
derives  its  validity  from  the  act  of  the  party,  and  not 
from  the  decree  of  the  court. ^^    But  a  decree  of  a  court 

la.  England.     Penn  v.  Lord  Bal-  96  Md.  489  (1903);  White  v.  White, 

timore,  1  Ves.  Sr.  444.  7   Gill.   &  J.  208   (1835). 

Florida.     Winn  v.  Strickland,  34  Massachusetts.      Brown    v.    Des- 

Fla.   610    (1894).  mond,  100  Mass.  267  (1868). 

lUinois.     Bevans  v.  Murray,  251  Michigan.    Noble  v.  Grandin,  125 

111.  603    (1911);   Cloud  v.  Greaslev,  ^^'^^h.  383   (1900). 
125  111.  313,  46  Am.  St.  Rep.  528  ^ew  Jersey.     Vreeland  v.  Vree- 

,,„„„,      XT       •  T>  ,1  o,    rn  land,  49  N.  J.  Eq.  322  (1892). 

(1888);   Hams  v.  Pullman,  84  111.  '  .     ^       -ci     .,        t>-ii 

„„    „^    .        „      ^         ,,„    .'    -^  Pennsylvania.    McElrath  v.  Pills- 

20,  25  Am.  St.  Eep.  416    (1876).  ,  I        r.        n         err    r.        iqo 

'  r  V         /  bury,    etc.,    Ry.    Co.,    55    Pa.    189 

Maine.    Reed  v.  Reed,  75  Me.  264       (1867). 
(1883).  Tennessee,     King  v.  Fellow,   90 

Maryland.      McGaw    v.    Gortner,      Tenn.  287  (1891);  Johnson  v.  Kim- 


702 


EQUITY  PRACTICE 


of  equity  could  never,  by  its  own  force  merely,  execute 
itself  and  transfer  title  or  furnish  any  means  of  so 
doing,  without  requiring  some  act  on  the  part  of  the 
defendant.- 

To-day,  however,  this  original  doctrine  is  largely  mod- 
ified in  most  of  the  states  either  by  the  courts  themselves 
without  the  aid  of  a  statute,-^  or  by  statute.  The  statutes 
relate  to  the  conveyance  of  titles  or  estates,  legal  or 
equitable,  in  some  specific  property.    These  statutes  are 

stock  within  its  own  jurisdiction. 
The  court  in  its  decision  made  a 
distinction  between  real  and  per- 
sonal property,  saying:  "It  does 
not  follow  that  because  anciently 
an  equity  decree  affecting  real  es- 
tate ojjcrated  only  in  personam 
and  did  not,  propria  vigore,  trans- 
fer or  establish  title,  that  such  de- 
crees affecting  personal  property 
within  the  jurisdiction  of  the  court 
were  in  the  same  way  limited  in 
their  practical  operation.  Assum- 
ing that  formerly  in  neither  case 
did  the  decree  establish  title  but 
only  the  right  of  the  complainant 
to  receive  title,  the  important  dis- 
tinction still  remains  that,  in  the 
case  of  real  estate,  title  did  not 
pass  upon  delivery  of  possession, 
whereas  in  the  case  of  chattel 
property  it   did." 

In  Wharton  v.  Stoutenburgh,  39 
N.  J.  Eq.  299  (1884),  the  court 
had  decreed  that  the  defendant 
execute  a  mining  lease  of  property 
within  the  jurisdiction.  He  re- 
fused to  obey  the  decree  and  left 
the  state.  The  court  thereupon 
by  a  further  decree  established 
the  lease  as  if  it  had  been  execut- 
ed, and  enjoined  and  restrained 
the  defendant  from  denying  its  ex- 
ecution and  delivery  and  from  de- 
fending himself  in  any  action  to 
be  brought  against  him. 


bro,  3  Head  557,  75  Am.  Dec.  781 
(1859). 

Virginia.  Poindexter  v.  Burwell, 
82  Va.  507   (1886). 

West  Virginia.  Wilson  v.  Bra- 
den,  48   W.   Va.   196    (1900) 

United  States.  Phelps  v.  Mc- 
Donald, 99  U.  S.  298,  25  L.  ed.  473 
(1878);  Muller  v.  Dows,  94  U.  S. 
444,  24  L.  ed.  207  (1876);  Watts 
V.  Waddle,  6  Pet.  389,  8  L.  ed.  437 
(1832);  Remer  v.  Mackay,  35  Fed. 
86  (1888). 

2.  Hart  v.  Sansom,  110  U.  S. 
155,  28  L.  ed.  101  (1883). 

2a.  Ampora  Mining  Co.  v.  Fidel- 
ity Trust  Co.,  74  N.  J.  Eq.  197 
(1908);  Tennant  v.  Fretts,  67  W. 
Va.  569,  29  L.  R.  A.  (X.  S.)  625 
(1910)  (distinguishing  Hart  v. 
Sansom,  110  U.  S.  155,  28  L.  ed. 
101  (1883)).  In  the  New  Jersey 
case,  the  plaintiff,  a  New  Jersey 
corporation,  asked  that  it  be  ad- 
judged the  equitable  owner  of 
stock  in  its  own  company  held  by 
a  non-resident,  and  that  the  latter 
be  decreed  to  assign  and  transfer 
the  shares  to  the  plaintiff.  The 
court  held  that  it  could  not  com- 
pel the  defendant  to  transfer  the 
certificates  or  execute  an  assign- 
ment or  power  of  attorney,  as  that 
would  be  a  personal  decree,  but 
that  it  could  adjudge  the  plaintiff 
to  be  the  equitable  owner  of  the 


EQUITABLE  REMEDIES 


703 


of  two  general  kinds:  1,  those  by  which  the  decree 
itself,  without  any  act  on  the  part  of  the  defendant  or 
of  an  officer  of  the  court  in  his  behalf,  creates  a  title,  and 
vests  a  legal  estate  in  the  subject  matter  in  the  plaintitf :  ^ 
2,  those  by  which  a  master  or  other  officer  of  the  court  ex- 
ecutes the  decree  by  making  a  conveyance  of  the  title  to 
the  plaintiff,  or  by  performing  some  other  act  of  transfer 
which  shall  have  the  same  effect  as  if  done  by  the  party 
himself.^  Such  provisions  obviously  are  not  applicable 
to  decrees  prohibiting  any  act,  to  general  pecuniary  re- 
coveries, nor  to  purely  ancillary  and  provisional  reme- 
dies. . 


3.  For  examples  of  statutes  of 
this  class,  see  the  following:  Ala 
Code  of  1907,  Sec.  3211;  Fla.  Gen 
Stat.,  Sec.  1902;  Md.  Code,  Art.  16, 
Sec.  95;   Me.  R.  S.,  Chap.   79,  Sec 

6,  cl.  8,  also  Chap.  113,  Sees.  8-12 
Mass.  Acts  of  1910,  Ch.  376;  Mich 
Comp,  Laws,  Sec.  465;  Miss.  Code 
Sec.  645;  Tenn.  Code,  Sec.  6301 
Vt.  Pub.  Stat.,  Sec.  1306. 

4.  Ala.  Code  1907,  Sec.  3211 
Delaware  Code  of  1852,  Sees.  5,  12 
14,  Laws  of  Del.  1905,  Vol.  23 
Chap.  196,  197;  Kurd's  111.  Stat. 
Chap.  22,  Sec.  46,  J.  &  A.  1 926 
Mass.  R.  L.,  Chap.  159,  Sec.  3,  cl 
7;  Miss.  Code  1906,  Sees.  645,647 
N.  H.  Public  Stat.,  Ch.  205,  Sees.  2 

7,  15,  see  Buffum's  Case,  13  N.  H 
14  (1842);  R.  L  Gen.  Laws,  Chap 
289,  Sec.  23;  Tenn.  Code,  Sec.  6302 
Chap.  176,  Sec.  1;  W.  Va.  Code  of 
1913,  Sec.  4938. 

It  seems  that  in  Pennsylvania, 
equitable  remedies  act  only  in  per- 
sonam.    See  Pa.  Eq.  Rule  88. 

In  Felch  v.  Hooper,  119  Mass.  52 
(1875),  where  a  person  who  had  en- 
tered into  a  written  contract  for 
the  purchase  of  land  had  paid  or 
tendered  the  consideration  and  by 


the  owner's  permission  had  entered 
upon  the  land  and  made  improve- 
ments thereon,  it  was  held  that  the 
land  was  charged  with  an  implied 
trust  in  his  favor;  and  although  the 
owner  was  a  non-resident  who  had 
not  been  served  with  process 
within  the  state,  the  court  ap- 
pointed a  trustee  to  make  the  nec- 
essary conveyance,  by  virtue  of 
Gen,  Stat.  Ch.  100,  Sec.  15,  which 
provides  that  where  any  person 
holding  the  title  to  property  in 
trust  is  beyond  the  jurisdiction  of 
the  court,  the  latter  may  appoint 
a  person  to  make  a  conveyance  for 
the  purpose  of  carrying  into  effect 
the  object  of  the  trust. 

Under  a  statute  in  Maryland  au- 
thorizing the  appointment  of  a 
trustee  to  convey  land  in  an  action 
for  specific  performance  where  the 
defendants  are  non-residents,  the 
proceeding  is  in  rem,  and  notice 
may  be  given  the  non-residents  by 
publication.  Hollander  v.  Central 
Metal  &  S.  Co.,  109  Md.  131,  23  L. 
R.  A.  (N.  S.)  1135  (1908);  and  see 
Clem  V.  Given 's,  106  Va.  145 
(1906),  to  the  same  effect. 


704 


EQUITY  PRACTICE 


The  operation  of  these  statutes  is  necessarily  confined 
to  the  territorial  limits  of  the  state  in  which  they  are 
enacted:  the  court  cannot  transfer  title  to  property  in 
another  state  by  virtue  of  its  own  decree  or  by  ordering 
a  conveyance  by  a  master  or  commissioner.^^  On  the 
other  hand,  where  the  res  is  within  the  jurisdiction  but 
the  debtor  is  a  non-resident,  it  seems  that  under  a  stat- 
ute i)roviding  for  a  creditors'  bill  to  reach  and  apply  un- 
attachable  property,   the   court,   in  order  to   carry   its 


4a.  Winn  v.  Strickland,  34  Fla. 
610  (1894);  Poimlexter  v.  Buswell, 
82  Va.  507  (1886);  Wilson  v. 
Braden,  48  W.  Va.  196  (1900); 
Watts  V.  Waddle,  6  Pet.  389 
(1832).  Contra,  Poole  v.  Koons, 
252  m.  49  (1911).  See  also  Byrne 
V.  Jones,  154  Fed.  321  (1908)  and 
Clark  V.  Fruit  Co.,  185  Fed.  604 
(1911). 

In  Eaton  v.  McCall,  86  Me.  346, 
350  (1894),  after  holding  that  a 
bill  might  be  maintained  in  -gen- 
eral chancery  practice  to  foreclose 
a  mortgage  on  land  situated  out  of 
the  state,  where  the  court  had  ju- 
risdiction of  the  person,  the  court 
said:  "It  must  be  remembered 
that  no  decree  of  the  court  would 
be  operative  except  one  against 
the  mortgagor,  or  person  having 
the  right  to  redeem,  commanding 
a  conveyance.  The  court  could 
not  proceed  in  the  usual  and  cus- 
tomary method  by  decreeing  either 
a  strict  foreclosure  or  a  foreclo- 
sure by  a  judicial  sale.  Neither 
the  decree  itself  nor  any  convey- 
ance under  it,  except  by  the  per- 
son in  whom  the  title  is  vested, 
can  operate  beyond  the  jurisdic- 
tion of  the  court.  Watkins  v.  Hol- 
man,  16  Pet.  25,  10  L.  ed.  873.  A 
court  cannot  send  its  process  into 
another  state,  nor  can  it  deliver 
possession   of   land   in   another   ju- 


risdiction. Muller  V.  Dows,  4  Otto 
444,  24  L.  ed.  207.  It  can  only 
accomplish  foreclosure  of  such  a 
mortgage  by  its  decree  in  per- 
sonam, compelling  a  conveyance." 

On  the  other  hand,  in  Byrne  v. 
Jones,  159  Fed.  321  (1908),  the 
court  held  that  it  could  order  its 
master  to  convey  land  beyond  its 
jurisdiction  where  a  trustee  under 
a  trust  agreement  wrongfully  re- 
fused to  do  so.  The  decision  was 
placed  on  the  ground  that  the  mas- 
ter could  be  substituted  for  the 
faithless  trustee  and  required  to 
carry  out  the  original  trust  agree- 
ment and  the  parties  being  before 
the  court  could  be  ordered  to  con- 
firm the  sale  by  subsequent  deed. 
The  reasoning  of  the  court  in  so 
far  as  it  upheld  its  power  to  aflPect 
the  title  of  land  in  another  juris- 
diction through  a  master's  sale 
would  seem  to  be  contrary  to  the 
cases  above  cited  and  does  not  ex- 
plain how  the  title  to  the  land 
could  be  vested  in  the  master  with- 
out a  conveyance  by  the  first  trus- 
tee who  held  the  land  under  the 
trust  agreement.  The  case,  how- 
ever, by  ordering  the  trustee  to 
confirm  the  master's  sale  by  sub- 
sequent deed,  cannot  be  taken  as 
an  authority  against  the  general 
rule. 


EQUITABLE  REMEDIES 


705 


decree  into  effect,  may  authorize  a  master  to  make  the 
necessary  conveyance.^  It  would  seem  that  if  such  au- 
thority can  be  implied  under  the  clause  giving  power  to 
reach  and  apply  property  of  a  debtor,  it  may  also  be 
implied  under  various  other  statutory  specifications  of 
powers,  general  or  special,  such  for  instance  as  the  power 
to  compel  the  specific  performance  of  a  contract  to  con- 
vey real  estate,  whenever  it  may  be  necessary  to  carry 
such  power  into  effect.*^ 


5.  Wilson  V.  Martin-Wilson  Co., 
151  Mass.  515  (1890).  According 
to  a  dictum  in  DuPuy  v.  Standard 
Mineral  Co.,  88  Me.  202  (1888),  the 
court  has  the  inherent  power  to 
order  such  conveyance  by  a  master 
in  any  case  where  the  court  has 
jurisdiction  of  the  res,  but  not  of 
the  person.  But  this  expression  of 
opinion  of  the  court  should  be  re- 
ceived with  some  limitation  since 
in  Wilson  v.  Martin-Wilson  Co., 
above  cited,  the  court  said:  "It  is 
undoubtedly  true  .  .  .  that 
as  a  general  rule  when  a  transfer 
of  property  is  necessary,  the  court 
cannot  order  a  conveyance  of  it  by 
a  person  other  than,  the  owner,  ex- 
cept under  the  expiess  or  implied 
authority  of  a  statute."  See  also 
Wilson  V.  Welch,  157  Mass.  77,  80 
(1892),  to  the  same  effect. 

6.  A  state  may  confer  jurisdic- 
tion in  rem  upon  a  court  of  equity 
by  a  statute  which  provides  in  ef- 
fect that  title  in  realty  may  be 
settled  by  a  proceeding  to  quiet 
title  or  to  remove  a  cloud  on  title, 
combined  with  a  general  statutory 
provision  for  constructive  service 
against  a  non-resident;  or  by  a 
statute  which  does  not  assume  to 
define  or  declare  the  power  of  a 
court  of  equity  in  this  form  of  suit 
but  does  provide  specifically  for 
constructive     service     of     process 

Whitehouse  E.  P.  Vol.  I — 4  5 


against  non-residents  in  such  suit. 
Arndt  V.  Griggs,  134  U.  S.  316,  33 
L.  ed.  918  (1890);  29  L.  R.  A.  (N. 
S.)  625,  626  note.  It  has  been  re- 
cently held  in  West  Virginia  that 
a  court  of  equity  may,  by  virtue 
of  its  inherent  power,  and  even  in 
the  absence  of  statute,  quiet  title 
to  land  within  its  jurisdiction  by  a 
decree  m  rem,  where  defendants 
are  non-residents  and  are  only  con- 
structively served.  Tennant  v. 
Fretts,  67  W.  Va.  659,  29  L.  R.  A. 
(N.  S.)  625  (1910).  In  this  case 
the  court  says:  "We  cannot  say 
that  equity  is  impotent  in  the  pres- 
ent case  to  grant  relief,  simply  be- 
cause defendants  are  beyond  the 
jurisdiction  of  the  court,  and  can- 
not be  compelled  to  obey  its  proc- 
ess. Equity  can  remove  a  cloud 
from  title  to  land  within  the 
court's  jurisdiction  without  having 
before  it  the  person  of  the  defend- 
ant. It  has  power  to  make  a  de- 
cree which  may  operate  upon  the 
subject-matter  of  the  suit,  notwith- 
standing such  a  decree  is,  in  its  na- 
ture, in  rem.  It  would  indeed  be  a 
deplorable  condition  if  our  law  af- 
forded no  relief  to  a  land  owner 
who  is  in  possession  of  his  land  un- 
der good  and  sufficient  title,  but 
which  happens  to  be  encumbered  by 
some  adverse  claim  or  lien  of  rec- 


706  EQUITY  PRACTICE 

The  conclusion  from  the  above  is  that  all  equitable 
remedies  may  be  enforced  in  personam  even  though  tlie 
res  be  out  of  the  state,  provided  the  parties  are  withiji 
the  jurisdiction,'  but  that  the  enforcement  of  decrees 
in  rem  without  requiring  any  act  to  be  done  by  the 
defendant,  is  probably  limited  to  those  cases  where  the 
authority  is  expressly  given  by  statute  or  can  be  implied 
under  statutes  granting  specific  equity  powers,  except 
in  some  states  where  such  power  is  held  to  be  inherent 
in  courts  of  equity. 

§  438.  Interpleader,  receivers,  injunctions,  etc.  The 
purely  ancillary  and  provisional  remedy  of  interi)leader 
has  already  been  fully  discussed  above  *  and  receivers 
and  injunctions  will  be  treated  in  the  next  subsequent 
chapters.  The  equitable  remedies  of  construction  of 
wills,  quieting  title,  specific  performance  and  contribu- 
tion, have  no  peculiar  rules  of  practice  which  need  fur- 
ther discussion  in  a  treatise  of  this  sort.  The  other 
remedies,  however,  will  each  require  some  further  ex- 
amination as  to  the  maniier  in  which  they  are  applied. 

§  439.  Reformation.  The  cases  in  which  the  remedy 
of  reformation  may  be  applied  are  of  two  kinds:  1, 
where  there  has  been  a  mutual  mistake  between  the 
parties  in  expressing  the  actual  contract  which  was 
entered  into  between  them;  ^  and  2,  where  there  has  been 

ord,    which    had    been    discharged,  -without  personal  service  or  appear- 
but  not  released. "  ance.      Cloyd    v.    Trotter,    118    111. 

In  all  these  cases  the  nature  of  391  (1886). 

the  decree  was  such  that  it  could  7.  See     Chapter     III,     "Person, 

accomplish  the  purpose  by  operat-  Territory   Amount,"   Sec.   40,   ante, 

ing  upon  the  subject-matter  of  the  p.  48. 

suit  rather  than  on  the  person   of  8.  See  Chap.  V,  Sec.  125  et  seq., 

the      defendant.        Whatever      the  ante,  pp.  235  et  seq. 

power  of  an  equity  court  may  be  9.  Florida.     Jacobs  v.  Parodi,  50 

to   render  a   decree   in   rem   against  Fla.  541    (1885). 

the    property    within    its    jurisdic-  Illinois.     Eyner  v.  Ball,   182  111, 

tion,   it   cannot   render   a   personal  171    (1899). 

decree,    as    for   instance,   a    decree  Maine.      Andrews    v.    Andrews, 

for    costs,    against    the    defendant  81   Me.   337    (1889). 


EQUITABLE  REMEDIES 


707 


a  mistake  of  one  party  accomplislied  by  fraud  on  the 
i)art  of  the  other.^'*  Any  written  instrument  made  or 
obtained  in  either  of  these  two  ways  may  be  reformed  so 
as  to  correspond  with  the  real  intention  of  both  the 
parties  in  the  first  case,  or  of  tlie  innocent  party  in  the 
second  case. 

The  remedy  of  reformation  is  not  accomplished  by 
actual  erasures  or  interlineations  in  the  instrument  itself, 
but  the  decree  states  the  correction  required  and  either 
orders  a  re-execution  ^^  of  the  instrument  by  the  defend- 
ant or  a  release  of  any  claim  or  right  which  he  might 
have  had  by  reason  of  the  mistake,  and  gives  an  injunc- 
tion against  setting  up  any  claim  contrary  to  the  true 
contract.^- 


Maryland.  Miller  v.  Stewart, 
107  Md.  23    (1907). 

Massachusetts.  Gould  v.  Emer- 
son, 160  Mass.  438   (1893). 

Michigan.  Marine  Sav.  Bank  v. 
Norton,  160  Mich.  614   (1910). 

Mississippi.  Miles  v.  Miles,  84 
Miss.  624   (1904). 

New  Hampshire.  Searles  v. 
Churchill,  69  N.  H.  530   (1898). 

Pennsylvania,  Baab  v.  Houser, 
203  Pa.  470   (1902). 

Bhode  Island.  Lawrence  v. 
Staigg,  8  E.  I.  256  (1866). 

Vermont.  May  v.  Adams,  58  Vt. 
74  (1886). 

Virginia. 
10  (1897). 

West  Virginia.  Allen  v.  Yeater, 
17  W.  Va.  128  (1880). 

United  States.  Medical  Society  v. 
Gilbreth,  208  Fed.  899  (1913). 

10.  Willan  v.  Willan,  16  Ves.  72, 
83;  Newell  v.  The  H.  &  F.  Brew- 
ing Co.,  9  Del.  Ch.  240  (1911); 
Bergen  v.  Ebey,  88  Til.  269  (1878) ; 
Jordan  v.  Stevens,  51  Me.  78 
(1863);  Spurr  v.  Benedict,  99 
Mass.  463    (1868);   Crislip  v.   Cain, 


Hull  V.  Watts,  95  Va. 


19  W.  Va.  438  (1882);  Medical  So- 
ciety V.  Gilbreth,  208  Fed.  899 
(1913). 

11.  Harding  v.  Jewell,  73  Me. 
426  (1882),  re-execution  for  want 
of  seal.  The  remedy  of  reforma- 
tion includes  that  of  re-execution 
from  one  point  of  view,  yet  re- 
execution  is  the  remedy  applied  in 
a  distinct  class  of  cases  from  those 
mentioned  in  the  text  as  the  occa- 
sion for  reformation,  viz.:  the  re- 
execution  of  instruments  which 
have  been  accidentally  lost  or  de- 
stroyed. Lancy  v.  Randlett,  80 
Me.   169    (1888). 

12.  Smith  v.  Greely,  14  N.  H. 
378  (1843);  Craig  v.  Kittredge,  23 
N.  H.  231,  236  (1851);  Gillespie  v. 
Moon,  2  Johns.  Ch.  (N.  Y.)  585, 
602    (1817). 

A  decree  awarding  reformation 
should  be  definite  and  the  details 
of  the  reformation  should  be  so 
set  out  that  the  decree  itself,  with- 
out reference  to  the  bill,  will  show 
how  the  instrument  in  question  is 
reformed.       Grav     v.     Merchants' 


708 


EQUITY  PRACTICE 


§  440.  Cancellation.^  '•  The  occasions  where  this  remedy 
may  be  applied  are  all  eases  where  it  would  be  inequitable 
to  enforce  an  instrument  by  reason  of  mistake  or  fraud, 
whether  the  instrument  be  voidable  or  absolutely  void,^^ 


Insurance  Co.,  125  111.  App.  1570 
(1906). 

The  following  cases  show  how 
reformation  may  be  effected:  Ja- 
cobs V.  Parodi,  50  Fla.  541  (1905) 
(by  rewriting  the  instrument  and 
by  injunction  against  enforcing 
the  old  one) ;  Baab  v.  Houser,  203 
Pa.  470  (1902)  (by  directing  that 
a  new  deed  be  delivered  conform- 
ing to  the  intent  of  parties,  that 
the  defendant  accept  the  correct- 
ed dee<l  in  place  of  the  old  one, 
and  that  the  recorder  of  deeds  can- 
cel the  first  dee<l  upon  the  rec- 
ord) ;  May  v.  Adams,  58  Vt.  74 
(1886)  (by  decreeing  that  deed  be 
reformed  to  correspond  with  the 
agreement,  that  the  defendant 
deed  additional  land,  and  that  he 
be  perpetually  enjoined  from  en- 
tering upon  any  of  the  additional 
land). 

Though  a  contract  could  not  be 
reformed  because  one  of  the  par- 
ties was  not  a  party  to  the  oral 
agreement  to  which  it  was  sought 
to  conform  it,  plaintiffs  were  en- 
titled to  relief  by  injunction  re- 
stricting the  use  of  the  written 
contract  to  the  intent  of  the  oral 
agreement.  Fife  v.  Gate,  82  Atl. 
741   (A't.  1912). 

When  equity  has  taken  jurisdic- 
tion of  a  bill  to  reform  a  written 
instrument,  it  will  administer  full 
relief  thereunder.  Jones  v.  Mc- 
Nealy,  139  Ala.  378,  101  Am.  St. 
Rep.  38  (1904)  (reformation  and 
foreclosure  of  mortgage) ;  Kelley 
V.  Galbraith,  186  111.  593  (1900^ 
(reformation    of   lease    and    decree 


for  rent);  Froyd  v.  Schultz,  260 
111.  268  (1913)  (reformation  and 
specific  performance);  Aetna  In- 
demnity Co.  V.  Baltimore  S.  P.  & 
C.  Eailway  Co.,  112  Md.  389 
(1910)  (reformation  and  enforce- 
ment as  reformed);  Gough  v.  Wil- 
liamson, 62  X.  J.  Eq.  526  (1901) 
(reformation  and  specific  perform- 
ance). 

In  a  case  of  reformation  of  a 
deed  for  conveying  an  excess  of 
land,  the  decree  may  direct  a  re- 
conveyance of  the  excess  land  or 
a  rectification  of  the  deed,  as  may 
be  most  convenient  to  the  parties, 
the  defendant  paying  the  actual 
value  for  the  time  he  occupied  the 
excess  land.  Eeed  v.  Cramer,  2 
N.  J.  Eq.  277,  34  Am.  Dec.  208 
(1839). 

13.  The  remedy  of  cancellation 
also  necessarily  involves  and  in- 
cludes that  of  rescission. 

14.  Illinois.  Morgan  v.  Owens, 
228  111.  598  (1907);  Moore  v. 
Munn,  69  111.  591    (1873). 

Maryland.  Baltimore  Sugar  Re- 
fining Co.  V.  Campbell  Co.,  83  Md. 
36  (1896). 

Massachusetts.  Xathan  v.  Na- 
than. ]66  Mass.  294  (1896). 

Michigan.  John  Hancock,  etc., 
Ins.  Co.  V.  Dick,  114  Mich.  337,  43 
L.  R.  A.  566  (1897), 

Mississippi.  Sessions  v.  Jones, 
6  How.   123   (1842). 

West  Virginia.  Hoopes  v.  De- 
vaughan,  43  W.  Va.  447   (1897). 

United  States.  Rich  v.  Braxton, 
158    U.    S.    375,    39    L.    ed.    1022 


EQUITABLE  REMEDIES 


709 


provided  tlie  invalidity  is  not  apparent  on  its  face.^"'  The 
most  frequent  instances  are  the  cancellation  of  deeds  ^" 
and  contracts  for  conveyance  of  land/^  negotiable 
paper,^^  bonds,^^  insurance  policies,^"  compromises,-^ 
awards  which  have  been  made  in  arbitration  proceed- 
ings,^- and  judgments,^^ 


(1894);    Sharon   v.   Terry,   36   Fed, 
337    (1888). 

The  court  will  not  cancel  a  deed 
for  unilateral  mistake  of  the 
grantor,  when  there  is  no  fraud 
on  the  part  of  the  grantee  or  un- 
conscionable advantage.  Bibber 
V.  Carville,  101  Me.  59  (1907). 

15.  Bromley  v.  Holland,  7  Ves. 
3,  21;  Briggs  v.  Johnson,  71  Me. 
235  (1880);  Peirsoll  v.  Elliott,  6 
Pet.  (U.  S.)  95,  98,  8  L.  ed.  332 
(1832). 

16.  Metcalf  v.  Metcalf,  85  Me. 
473  (1893);  Severance  v.  Ash,  81 
Me.  278    (1889).     See  as  to  deeds: 

England.  Harrison  v.  Guest,  6 
DeG.  M.  &  G.  424. 

Florida.  Mattair  v.  Payne,  15 
ria.   602    (1876). 

Illinois.  Seymour  v.  Belding,  83 
111.  222   (1876). 

Massachusetts.  Motherway  v. 
Wall,  168  Mass.  333   (1897). 

Michigan.  Eitter  v.  Ritter,  42 
Mich.  108   (1879). 

New  Jersey.  Hyer  v.  Little,  20 
N.  J.  Eq.  443   (1870). 

Tennessee.  Parrott  v.  Parrott, 
1  Heisk.  681   (1870). 

Virginia.  Morrison  v.  Morrison, 
27  Gratt.  190   (1876). 

United  States.  Allore  v.  Jewell, 
94  U.  S.  506, -24  L.  ed.  560   (1876). 

As  to  mortgages:  Kinsley  v. 
Davis,  74  Me.  498  (1883),  cancella- 
tion of  the  discharge,  York  v. 
Murphy,  91  Me.  320  (1898),  bill  to 
annul  a  chattel  mortgage  was  en- 
tertained,    and     also,     Schoper     v. 


Schoper,   84   111.    603    (1877);    Con- 
nelly   V.    Fisher,    3    Tenn.    Ch.    382 
(1877). 
As  to  leases:     Field  v.  Herrick, 

5  111.  App.  54  (1879). 

17.  Young  V.  Hughes,  32  N.  J. 
Eq.   372    (1880). 

18.  Before  maturity.  Jervis  v. 
White,  7  Ves.  413;  Fuller  v.  Perci- 
val,  126  Mass.  381  (1879)  (surren- 
der of  note) ;  Soper  v.  Manning, 
147  Mass.  126  (1888)  (surrender 
of  draft) ;  Maclean  v.  Fitzsini- 
mons,  80  Mich.  336  (1890);  Met- 
ier's  Adm'rs  v.  Metier,  18  N.  J. 
Eq.  270  (1867);  Hughes  v.  U.  S., 
4  Wall.  232,  18  L.  ed.  303   (1866). 

19.  Jackman  v.  Mitchell,  13  Yes. 
581;  Abbott  v.  Treat,  78  Me.  121 
(1886);  Farmington  Village  Corp. 
V.  Bank,  85  Me.  53  (1892)";  Hamil- 
ton V.  Cummings,  1  Johns.  Ch. 
(N.   Y.)    517    (1815). 

20.  Traill  v.  Baring,  4  De  G.  J. 

6  S.  318;  Derrick  v.  Lamar  Ins. 
Co.,  74  111.  404  (1874);  Maine  Ben- 
efit Ass'n  V.  Parks,  81  Me.  79 
(1888)  ;  Com.  Ins.  Co.  v.  McLoon,  14 
Allen  351  (1867)  ;  Ins.  Co.  v.  Bailey, 
13  Wall.  616,  20  L.  ed.  501  (1871). 

21.  Adams  Eq.  (7th  ed.),  pp. 
188,  189;  Naylor  v.  Winch,  1  Sim. 
&  Stu.  (Eng.  Ch.)  555,  564;  Cabot  v. 
Haskins,  3  Pick.  (Mass.)  83  (1824). 

22.  Brown  v.  Brown,  1  Vern. 
156,  and  cases  cited  in  note;  Cat- 
lett  V.  Dougherty,  114  111.  568 
(1885);  Craft  v.  Thompson,  51  N. 
H.  536   (1872). 

23.  Pomeroy's     Eq.     Jur.,     Sees. 


710 


EQUITY  PRACTICE 


Tlie  romedy  of  cancellation  is  usually  effected  by  com- 
pelling the  defendant  to  deliver  up  the  instrument  for 
cancellation,  or  where  this  cannot  be  done  a  release  will 
be  ordered  of  all  rights  thereunder  and  an  injunction 
will  issue  against  setting  up  any  claim  by  reason  of  said 
instrument.-'*  In  the  case  of  judgments,  although  the 
remedy  of  cancellation  is  said  to  be  applicable  to  them, 
yet  it  cannot  in  such  case  operate  by  an  actual  surrender 
and  cancellation  of  the  judgment,  nor  does  it  operate 
directly  upon  the  judgment  or  interfere  with  the  court 


1361,  1364  and  notes;  Devoll  v. 
Scales,  49  Me.  320  (1860);  Emer- 
son V.  Udall,  13  Vt.  477  (1841). 
See  Chapter  V,  "Bills  Not  Origi- 
nal," Sec.  152,  ante,  p.  299. 

24.  In  cases  of  cancellation  or 
rescission,  the  court  endeavors  to 
place  the  parties  as  far  as  possi- 
ble in  statu  quo.  Felt  v.  Bell,  205 
111.  213  (1903);  Brunner  v.  Miller, 
59  W.  Va.  36   (1903). 

In  a  suit  for  rescission  of  a  deed 
on  account  of  mental  incapacity, 
the  decree  may  provide  that  the 
grantee  be  amply  compensated  for 
all  he  did  and  expended  for  the 
grantor.  Bollnow  v.  Roach,  210 
111.  364  (1904);  Troub  v.  Thorpe, 
152  Mich.  363  (1908);  Grant  v. 
Bell,  26  R.  I.  288  (1904).  The 
court  will  compel  an  accounting, 
upon  the  rescission  of  a  deed,  for 
the  proceeds  of  the  land  or  prod- 
ucts of  the  land  which  had  been 
sold  by  the  grantee.  Gillen  v. 
Gillen,  238  111.  218  (1909);  Jack- 
son V.  Counts,  106  Va.  7  (1906). 
Rescission  may  be  granted  on  the 
condition  of  executing  a  new  in- 
strument as  originally  intended. 
Thompson  v.  Owens,  121  Mich.  138 
(1899).  Or  it  may  be  made  con- 
ditional  on  the   failure   of  the   de- 


fendant to  re-convey  all  interest 
beyond  what  the  grantor  agreed  to 
convey.  Tolley  v.  Poteet,  62  W. 
Va.  23  (1907). 

A  decree  rescinding  a  contract 
whereby  the  plaintiff  was  fraudu- 
lently induced  to  pay  money  may 
give  a  lien  on  the  land  in  which 
the  money  was  invested,  and  a 
personal  decree  against  the  de- 
fondant  for  the  balance.  Witham 
V.  Walsh,  156  Mich.  582   (1909). 

On  rescission  of  deeds  of  ex- 
change, mutual  conveyances  should 
be  ordered  to  restore  the  title. 
Knowlton  v.  Amy,  47  Mich.  204 
(1881).  A  decree  for  rescission 
may  stand  in  lieu  of  the  re-con- 
veyance until  made.  Thorne  v. 
Thorne,  51  Mich.  167  (1883).  It 
is  sometimes  held  that  under  a  de- 
cree of  rescission  of  a  deed  for 
fiaud,  a  return  of  the  deed  is  suflfi- 
cient  re-conveyance.  Roche  v. 
Xorfleet,  63  111.  App.  612  (1895). 

The  entry  of  a  decree  for  the 
plaintiff  in  an  action  for  rescis- 
sion of  a  deed  acts  as  a  convey- 
ance under  a  statute  giving  a  de- 
cree the  force  and  effect  of  a  ton- 
veyance  in  certain  cases.  Wilkins 
V.  McCorkle,  112  Tenn.  688  (1904). 


EQUITABLE  REMEDIES 


711 


of  law;  the  proper  procedure  is  by  injunction  against 
the  defendant  to  prevent  his  attempting  to  enforce  such 
judgment,  or  by  ordering  him  to  acknowledge  satisfac- 
tion thereof.-^ 

§  441.  Partition.  Before  a  court  of  equity  will  enter- 
tain jurisdiction  of  a  bill  for  partition,  the  plaintiff  must 
show  a  clear  legal  title.  Equity  will  not  try  the  con- 
flicting titles  of  parties  in  their  suits  for  partition.  The 
court  will,  however,  when  the  title  is  uncertain,  order 
the  bill  to  be  retained  a  reasonable  time  to  allow  the 
plaintiff  opportunity  to  establish  his  title  at  law  if  he 
desires  to  do  so,  otherwise  it  will  be  dismissed  with 
costs.^*^    The  court  first  makes  an  interlocutory  decree  ^" 


25.  See  Chapter  V,  "Bills  Not 
Original,"  Sec.  152,  ante,  p.  299. 

26.  Alabama,  Harrison  v.  Tay- 
lor, 111  Ala.  317  (1895). 

Maine.  Nash  v.  Simpson,  78  Me. 
142    (1886). 

Maryland.  Boone  v.  Boone,  3 
M(l.  Ch.  497   (1850). 

Mississippi.  Hassam  v.  Day,  39 
Miss.  392,  77  Am.  Dec.  684 
(1860). 

New  Jersey.  Land  Co.  v.  De- 
Gray,  71  N.  J.  Eq.  283   (1906). 

Pennsylvania.  Branden  v.  Mc- 
Kinney,  233  Pa.  481    (1910). 

Tennessee.  Apple  v.  Owens,  1 
Tenn.  Ch.  App.  135   (1902). 

United  States.  Clark  v.  Roller, 
199  U.  S.  541,  50  L.  ed.  300  (1905). 

But  the  plaintiff  should  make 
application  for  leave  to  establish 
his  title  at  law.  Hassam  v.  Day, 
39  Miss.  392,  77  Am.  Dec.  684 
(1860). 

The  claim  must  be  a  bona  fide 
and  sufficient  claim.  In  re  McMa- 
hon,  211  Pa.  292   (1905). 

Where  title  depends  on  a  ques- 
tion of  law,  the  equity  court  may 


determine  title.  Cooley  v.  Hous- 
ton,  229   Pa.   495    (1911). 

Or  where  the  titles  are  equita- 
ble. Carter  v.  Taylor,  8  Head 
(Tenn.)    30    (1851). 

By  statute  in  some  states  ques- 
tions of  title  may  be  determined 
without  sending  parties  to  a  court 
of  law.  Miss.  Code  of  1906,  Sec. 
3525;  Curran  v.  Spraull,  10  Gratt. 
(Va.)    145    (1853). 

Some  statutes,  however,  confine 
the  trial  of  questions  of  title  to 
claims  by  parties  to  the  partition 
proceedings  and  not  to  outside 
claims.  Bullock  v.  Knox,  96  Ala. 
195  (1891);  Nugent  v.  Powell,  63 
Jriss.  99  (1885);  Davis  v.  Settle, 
43  W.  Va.  17   (1896). 

27.  Croston  v.  Male,  56  W.  Va. 
205,  107  Am.  St.  Rep.  918   (1904). 

It  is  error  to  decree  partition 
before  the  defendant  files  his  an- 
swer or  a  decree  pro  confesso  is 
entered  against  him.  Ropes  v. 
McCabe,  40  Fla.  388   (1898). 

This  interlocutory  decree  does 
not  actually  partition  the  prop- 
erty ;  the  appointment  of  commis- 
sioners    is     necessary.       Crane     v. 


712 


EQUITY  PRACTICE 


directing  a  partition,  determining  the  moieties  of  the 
parties  and  appointing  commissioners.-^  Partition  may 
be  accomplished  in  two  ways:  first,  by  actual  partition 
in  which  the  property  is  divided  by  mutual  conveyances, 
combined  if  necessary  with  a  pecuniary  compensation 
on  one  side  or  the  other,  in  case  the  values  cannot  be 
adjusted  exactly  by  conveyances  alone;  and  secondly,  by 
sale  and  division  of  the  proceeds  in  those  cases  where 
an  actual  partition  cannot  be  made  without  impairing 
the  value  of  the  property  and  consequent  injury  to  both 
parties.-^  It  has  been  held  that  a  sale  upon  partition 
could  not  be  made  but  for  a  statute  authorizing  it.-^^ 
Such  statutes  exist  in  most  jurisdictions,  and  substan- 
tially provide  that  sale  shall  be  ordered  when  property 
cannot  be  divided  without  great  prejudice  to  the  owners 
or  when  the  interest  of  the  owners  will  be  promoted  by 
the  sale.-^^    Proportional  reimbursements  may  be  allowed 


Stafford,  217  111.  21  (1905);  Law- 
son  V.  Bonner,  88  Miss.  235,  117 
Am.  St.  Eep.  738  (1906).  Contra: 
Elk  Valley  Coal  Co.  v.  Douglass, 
Tenn.  Ch.  App.  365   (1898). 

28.  The  commissioners  are  re- 
quired in  most  states  to  give  no- 
tice in  order  that  the  parties  in- 
terested in  partition  may  be  heard 
before  them.  Ware  v.  Hunnewell, 
20  Me.  291  (1841);  Stillings  v.  Still- 
ings,  22  Md.  41  (1864);  Simpson 
V.  Simpson,  59  Mich.  71  (1886); 
Walmsley  v.  Mill  Creek  C.  &  L. 
Co.,  56  V.  Va.  296  (1904);  Me- 
Clanahan  v.  Hickman,  96  Va.  392 
(1898). 

The  division  of  the  land  should 
be  left  to  the  commissioners,  and 
it  is  error  in  the  decree  to  direct 
them  to  divide  the  land  so  as  to 
give  one  of  the  parties  a  certain 
portion  thereof.  Lawson  v.  Bon- 
ner, 88  Miss.  235,  117  Am.  St.  Eep. 
758   (1906). 


In  Pennsylvania  the  court  sends 
the  case  to  a  master  to  make  par- 
tition after  an  adjudication  is  filed 
containing  the  findings  of  fact  and 
conclusions  of  law.  Lincoln  v. 
Africa,   228  Pa.  546   (1910). 

29.  As  between  a  sale  and  a  par- 
tition in  kind  the  courts  favor  the 
latter.  Eoyston  v.  Miller,  76  Fed. 
50    (1896).' 

Where  partition  is  made  in  kind, 
the  court  directs  the  execution  of 
mutual  conveyances  by  the  parties 
in  sui  juris  and  by  a  commissioner 
for  those  non  sui  juris.  Bowling 
V.  Teel,  76  Va.  487  (1882). 

29a.  Croston  v.  Male,  56  W.  Va. 
205,   107  Am.  St.  Eep.  918   (1904). 

29b.  Illinois.  Donaldson  v.  Dun- 
can, 199  111.  167  (1902). 

Maryland.  Eowe  v.  Gillelan, 
112  Md.  108   (1910). 

Michigan.  Oilman  v.  Boden,  136 
Mich.  125,  112  Am.  St.  Eep.  356 
(1904). 


EQUITABLE  REMEDIES 


713 


in  the  decree  for  improvements,  payments  and  advances 
in  favor  of  one  tenant  against  another.^^'' 

§  442.  Redemption.  The  method  usually  employed  of 
effecting  redemption  ^^  of  real  estate  and  chattels  is  to 
direct  an  account  to  be  taken  by  the  master  of  the  amount 
due,  and  then  to  order  the  defendant  mortgagee  upon 
payment  by  the  plaintiff  of  the  amount  thus  found  due 
within  a  specified  time  ^^  after  the  report  of  the  master, 


New  Jersey.  "White  v.  Smith, 
70  N.  J.  Eq.  418   (1906). 

Tennessee.  Rutherford  v.  Ruth- 
erford, 116  Tenn.  383,  115  Am.  St. 
Rep.  799   (1906). 

West  Virginia.  Herold  v.  Craig, 
59  W.  Va.  353   (1906). 

In  ordering  a  sale  of  land  for 
partition,  court  may  in  its  discre- 
tion authorize  a  private  sale,  sub- 
ject to  its  approval.  Conrad's 
Admr.  v.  Fuller,  98  Va.  16   (1900). 

Where  a  master  cannot  sell 
property  at  the  price  fixed  by  the 
decree  on  the  report  of  the  first 
commissioners,  the  court  may  ap- 
point others  to  partition  the  prop- 
erty or  to  appraise  its  value  if  it 
could  not  be  partitioned  without 
prejudice.  Schultz  v.  Haas,  227  111. 
156    (1904). 

29c.  Fenton  v.  Wendell,  116 
Mich.  45  (1898);  Walker  v.  Wil- 
liams, 84  Miss.  392  (1904);  White 
v.  Smith,  70  N.  J.  Eq.  418  (1906); 
Rutherford  v.  Rutherford,  116 
Tenn.  383   (1906). 

A  usual  method  is  to  send  the 
case  to  a  master  to  state  an  ac- 
count. Blackerby  v.  Blaekerby, 
185  111.  94  (1900);  Ballou  v.  Bal- 
lou,  94  Va.  350,  64  Am.  St.  Rep. 
733  (1897).  This  is  allowable  even 
though  there  is  no  privity  of  con- 
tract, on  the  ground  that  it  is  in- 
cidental to  other  relief,  cognizable 


only   in   equity.      Coleman   v.   Con- 
nolly, 242  111.  574   (1909). 

The  court  may  decree  a  lien  in 
favor  of  one  tenant  on  the  shares 
of  the  other  tenants  for  improve- 
ments made  by  the  former.  Ben- 
nett V.  Bennett,  84  Miss.  493 
(1904). 

30.  In  bills  to  redeem,  the  court 
by  interlocutory  decree  declares 
the  rights  of  the  parties  and  the 
rule  to  be  adopted  in  stating  the 
account,  and  then  refers  the  case 
to  a  master.  Mosier  v.  Norton,  83 
111.   519    (1876). 

In  Pennsylvania  the  right  of  re- 
demption may  be  enforced  by  the 
action  of  ejectment,  which  in  that 
state  is  an  equitable  action.  The 
jury  ascertains  how  much  the  mort- 
gagee has  realized  from  the  rents 
and  profits,  and  if  they  find  he  has 
received  enough  to  pay  the  sum  se- 
cured, the  verdict  is  for  the  plain- 
tiff; if  not,  they  bring  in  a  condi- 
tional verdict  that  upon  payment 
of  the  residue,  the  mortgagor 
may  have  possession.  Mellon  v. 
Lemmon,  111  Pa.  St.  56,  65  (1885). 

31.  It  is  essential  that  the  time 
be  fixed  within  which  the  mort- 
gagor shall  pay  the  debt  or  the 
bill  be  dismissed  with  costs,  and 
if  dismissed,  the  legal  effect  of 
such  dismissal  is  a  foreclosure  of 
the  mortgage.  Pitman  v.  Thorn- 
ton, 66  Me.  469   (1876);   Adams  v. 


714  EQUITY  PRACTICE 

either  to  execute  a  release  to  tlie  plaintiff  or  to  enter  a 
discharge  ^-  of  the  mortgagee  upon  the  record,  and  if  he 
is  in  possession  to  deliver  the  possession  of  the  property 
to  the  mortgagor  free  of  all  incumbrances  created  by 
the  mortgagee  or  any  person  under  him.  The  same 
method  would  be  followed  in  the  redemj^tion  of  a  chattel 
mortgage. 

§  443.  Strict  foreclosure.  There  are  two  methods  of 
foreclosure  in  use  in  general  chancery  jDractice  in  this 
country:  strict  foreclosure,  and  foreclosure  by  judicial 
sale.  The  remedy  of  strict  foreclosure  is  based  on  the 
common  law  theoiy  of  mortgages,  viz.:  that  the  mortgage 
deed  vests  the  legal  title  in. the  mortgagee  as  between 
himself  and  the  mortgagor.  Strict  foreclosure  therefore 
assimies  that  the  mortgagee  is  already  in  possession  by 
virtue  of  his  legal  title.  The  decree  ascertains  and  fixes 
the  amount  of  the  debt  due  and  payable,  after  an  account- 
ing if  necessary,  specifies  a  period,  usually  six  months, 
within  which  redemption  must  be  made  by  pa^Tnent  of 
the  same,  and  declares  that  upon  default  of  payment 
within  the  specified  period,  the  legal  estate  and  title  of 
the  plaintiff  shall  be  absolute,  and  the  equity  of  redemp- 
tion of  the  mortgagor  and  of  all  other  persons  claiming 

Cameron,     40     Mich.     506     (1870);  sale  in  the  absence  of  a  prayer  for 

Hazard   v.   Robinson,   15   R.  I.   226  it  or  a  cross  bilh 

(1886);    Smith    v.    Bailey,    10    A't.  32.  Under  the   common  law  the- 

163  (1838).  ory  of   mortgages,  a  reconveyance 

In  some  states  this  does  not  fol-  should  be  required  from  the  mort- 

low  from  a  mere  failure  to  redeem,  gagee,  since  by  the  mortgage  deed 

but  there  must  be  a  further  order  the    legal    title    became    vested    in 

of  court   dismissing  the  bill.     Tet-  him    as    between    himself    and    the 

rault    V.    Labbe,     155     Mass.     497  mortgagor.     This   has  been  so  far 

(1891).  relaxed    in    some    states    that    the 

In  some  states  it  is  usual  to  pro-  mere  acknowledgment   of  satisfac- 

vide  in  the  decree  that  on  failure  tion  by  entering  a  discharge  upon 

to    redeem,   the   property   be    sold.  the  record  revests  the  title  in  the 

Hollingsworth    v.    Koon,    117    111.  mortgagor.     Pom.     Eq.     Jur.,    Sec. 

511    (1886).      But    see    Lindsey    v.  1219,   n.   1.     See  Maine  E.  S.,  Ch. 

Matthews,     17     Fla.     575     (1880),  92,  Sec.   30. 
holding  that  it  is  error  to  decree  a 


EQUITABLE  REMEDIES  715 

under  him  subsequent  to  the  mortgage,  who  were  made 
defendants  in  the  suit,  shall  be  forever  barred  and  fore- 
closed. By  operation  of  this  decree,  the  mortgagee's 
legal  title  to  the  land  acquired  by  the  mortgage  deed 
is  finally  confirmed  and  established,  free  from  all  equities 
of  redemption, ^^ 

The  remedy  of  strict  foreclosure  therefore  is  confined 
to  those  states  where  the  common  law  theory  of  mort- 
gages prevails.  It  might  on  principle  be  employed  in 
case  a  foreclosure  should  be  allowed  under  the  general 
chancery  powers,  but  even  in  those  states  holding  the 
common  law  theory,  the  foreclosure  by  judicial  sale  is 
the  form  most  frequently  used  ^^  as  being  ordinarily  more 
equitable.  It  would  undoubtedly  be  the  one  employed 
in  any  case  where  the  value  of  the  property  exceeded 
the  amount  of  the  mortgage  debt.^^ 

§  444.  Foreclosure  by  judicial  sale.  This  form  of 
remedy,  which  prevails  in  by  far  the  greater  number  of 
states  in  this  country,  is  based  upon  the  equitable  theory 
of  mortgages,  viz.:  that  the  mortgage  simply  creates 
an  equitable  lien  upon  the  premises,  as  a  security  for  the 
mortgage  debt.     Its  object  is  to  enforce  that  lien  by  a 

33.  Pom.  Eq.  Jur.,  Sec.  1227;  precedent  for  such  a  course,  he 
Ellis  V.  Leek,  127  111.  60,  3  L.  E.       would  make  one. 

A.  259   (1889);   Chicago,  etc.,  Eail-  35.  Carpenter  v.  Plagge,  192  III. 

way  Co.  V.  Posdick,  106  U.  S.  47,  82  (1901).     In  Eaton  v.  McCall,  86 

27  L.  ed.  47   (1882).  Me.    346    (1894),    the    court,    after 

34.  It  seems  that  even  in  Eng-  holding  that,  having  jurisdiction 
land,  where  the  common  law  the-  of  the  person  of  the  mortgagor,  it 
ory  prevailed,  the  court  did  not  had  the  power,  under  general  chan- 
confine  itself  entirely  to  strict  fore-  eery  powers,  to  foreclose  a  mort- 
closure.  In  Mondey  v.  Mondey,  1  gage  of  land  situated  out  of  the 
Ves.  &  B.  223,  where  the  mort-  state,  said  that  it  could  not  pro- 
gagor's  heir  against  whom  the  bill  ceed  in  the  usual  and  customary 
was  brought  was  an  infant,  and  method  by  decreeing  either  a 
the  mortgagee  consented  to  a  sale  strict  foreclosure  or  a  foreclosure 
by  which  the  surplus  might  be  by  judicial  sale.  "It  can  only  ac- 
saved  for  the  benefit  of  the  de-  complish  foreclosure  of  such  a 
fendant,  Lord  Eldon  decreed  a  mortgage  by  its  decree  in  per- 
sale,  saying  that  if  there  was  no  sovam  compelling  a  conveyance." 


716  EQUITY  PRACTICE 

sale  of  the  premises,  in  order  that  the  proceeds  may  be 
applied  in  satisfaction  of  the  debt.  The  decree  ascer- 
tains the  amount  due,  and  orders  that  the  mortgaged 
premises  be  sold  at  public  auction  by  judicial  sale  and 
that  the  proceeds  be  applied  in  payment  of  the  amount 
thus  ascertained,  after  satisfying  the  expenses  of  the 
sale  itself.  When  the  agreement  of  sale  has  been  made 
by  the  master  and  confirmed  by  the  court,  a  conveyance 
is  ordered  to  be  executed  by  the  mortgagor  to  the  pur- 
chaser, who  may  be  the  mortgagee  himself,  and  such 
purchaser  is  then  entitled  to  possession  and  will  be  put 
in  if  necessary  by  the  process  of  the  court.  The  effect  of 
this  deed,  when  given  in  pursuance  of  a  valid  decree 
and  sale,  is  to  convey  to  the  purchaser  whatever  title 
the  mortgagor  had  at  the  time  of  executing  the  mort- 
gage, and  whatever  title  he  may  subsequently  have 
acquired  down  to  the  time  of  the  foreclosure.^^ 

§  445.  Deficiency  decree  on  foreclosure.  Where  the 
proceeds  received  from. the  sale  of  the  property,  after 
paying  the  expenses  thereof,  are  not  sufficient  to  satisfy 
the  mortgage  debt  in  full,  and  that  fact  and  the  amount 
lacking  is  reported  by  the  master,  the  court  will  in  its 
decree  order  execution  to  issue  against  the  mortgagor 
for  the  amount  of  such  deficiency,  without  further  suit.^" 

36.  Pom.  Eq.  .Jur.,  p.  1884.  cover  his  deficiency  in  a  separate 
A    day    of    payment    before    the       action  at  law.     Morgan  v.  Wilkins, 

sale   on   foreclosure   is   allowed   by  6    J.    J.    Marsh    (Ky.)    28    (1831); 

some   courts.     Burt   v.  Thomas,  49  Dunkley   v.    Van    Buren,    3    Johns. 

Mich.     462     (1882);     Stockton     v.  Ch.   (X.  Y.)  330   (1818).     Even  to- 

Dundee  Mfg.  Co.,  22  N.  J.  Eq.  56  day  as   a  general   rule   the   power 

(1871);    Harkins    v.    Forswith,    11  to  render  a  deficiency  decree  in  a 

Leigh  (Va.)  306  (1840).  foreclosure   suit   rests   upon   statu- 

37.  Pom.  Eq.  Jur.,  p.  1885;  Ala-  tory  grounds.  Webber  v.  Blanc, 
bama  Code,  1907,  Sec.  3219;  U.  S.  39  Fla.  224  (1897).  Where  the 
Eq.  Rule  10  (1913).  This  practice  statute  allows  it,  the  deficiency  de- 
of  rendering  a  deficiency  decree  is  cree  is  to  be  made  following  a 
the  result  of  the  change  from  the  hearing  of  the  liability  after  the 
strict  to  the  equitable  method  of  deficiency  is  reported  by  the  mas- 
foreclosure.  Formerly,  however,  ter.  Sheldon  v.  Erskine,  78  Mich, 
the  plaintiff  was  compelled   to  re-  627  (1889);  Weir  v.  Field,  67  Miss. 


EQUITABLE  REMEDIES 


717 


On  the  other  hand,  if  there  should  be  a  surplus  over  and 
above  the  mortgage  debt,  this  will  be  ordered  to  be  paid 
to  the  mortgagor  or  divided  between  him  and  subsequent 
incumbrancers,  if  there  be  any,  in  order  of  their 
priority.^^ 

§  446.  Marshaling  assets.  The  equitable  remedy  of 
marshaling  assets  and  securities  is  based  on  the  prin- 
ciple that  a  person  having  two  funds  to  satisfy  his 
demands  shall  not  by  his  election  disappoint  a  party 
having  but  one  fund.  Thus  where  one  person  holds  a 
first  mortgage  on  two  parcels  of  land  and  another  person 
holds  a  second  mortgage  on  one  of  the  parcels,  the  court 
will  order  the  first  mortgagee  to  satisfy  his  claim  out  of 
that  parcel  which  the  second  cannot  touch, "^  provided 


292  (1889).  In  Baker  v.  Scott,  62 
111.  86  (1871),  the  decree  ordered 
that  the  master  specify  the  amount 
of  the  deficiency  upon  the  sale  and 
that  the  defendant  pay  the  same, 
and  that  plaintiff  have  execution 
therefor.  A  decree  of  foreclosure 
and  the  commissioners '  report  of 
a  deficiency  on  the  sale  establish 
a  prima  facie  case  for  the  issue  of 
execution  for  such  deficiency. 
Wallace  v.  Field,  56  Mich.  3 
(1885).  In  some  jurisdictions,  a 
deficiency  decree  is  made  by  virtue 
of  the  general  chancery  principle 
that  equity  having  obtained  juris- 
diction for  one  purpose  will  retain 
it  for  complete  relief.  Nolen  v. 
Woods,  12  Lea  (Tenn.)  615 
(1883);  Walters  v.  Farmers'  Bank, 
76  Va.  12   (1881). 

In  Flint  v.  Land  Co.,  89  Me.  420 
(1896),  a  separate  bill  was  main- 
tained under  general  chancery 
powers  to  recover  a  deficiency  due 
on  a  mortgage  after  the  comple- 
tion of  foreclosure  by  the  sum- 
mary statutory  method  of  publica- 
tion.    If  a  bill  can  be  maintained 


in  such  a  case  for  a  pure  money 
recovery  independent  of  a  bill  to 
effect  the  foreclosure,  it  certainly 
can  be  done,  a  fortiori,  as  an  inci- 
dent to  a  bill  in  which  the  main 
relief  is  the  foreclosure. 

38.  Pom.  Eq.  Jur.,  p.  1885;  Hart 
v.  Wingart,  83  111.  282  (1876);  Con- 
verse V.  Ware  Sav.  Bank,  152  Mass. 
407  (1890);  Durling  v.  Stilwell,  74 
N.  J.  Eq.  697  (1908);  East  Green- 
wich Sav.  Inst.  V.  Shippee,  20  R.  I. 
650  (1898);  Jackson  v.  Coflfman, 
110  Tenn.  271  (1903). 

39.  England.  Aldrich  v.  Cooper, 
8  Ves.  382,  395. 

Illinois.  Wyman  v.  Ft.  Dear- 
born Nat.  Bank,  181  111.  279,  72 
Am.  St.  Rep.  259,  48  L.  R.  A.  565 
(1899). 

Maryland.  Records  v.  McKim, 
115  Md.  299,  306  (1911)  (equitable 
owner). 

New  Jersey.  Boice  v.  Conover, 
63  N.  J.  Eq.  273  (1901). 

New  York.  Cheesebrough  v. 
Millard,  1  Johns.  Ch.  409  (1815). 

Pennsylvania.  Milligan  's  Ap- 
peal, 104  Pa.  503   (1883). 


718 


EQUITY  PRACTICE 


this  can  be  done  without  delaying  or  hindering  the  first 
mortgagee  in  the  collection  of  his  debt.^" 

§  447.  Creditors'  bills  for  reaching  and  applying  prop- 
erty. Creditors'  bills  may  result  in  the  following  forms 
of  relief:  First,  in  those  cases  where  the  bill  is  brought 
under  the  general  chancery  powers  by  reason  of  the 
fraudulent  conveyance  of  property,  the  creditor  is  first 
required  to  levy  or  otherwise  acquire  a  legal  title,  if 
possible,  and  then  the  court  will  remove  the  cloud  on  the 
legal  title  thus  acquired,  by  ordering  a  release  by  the 
fraudulent  grantee  to  the  plaintiff.^' 

Second,  in  those  cases  brought  under  the  general 
chancery  powers  to  reach  and  apply  property  which  can- 
not for  any  reason  be  come  at  to  be  attached  or  levied 
upon,  the  court  will  apply  the  property,  after  all  legal 
rights  have  been  exhausted  by  a  judgment  and  return 
of  nulla  bona,  either  by  ordering  the  fraudulent  grantee 


Matthews, 


St. 


Tennessee.     Kent 
12  Lea  573    (ISOl). 

West  Virginia.  Hudkins 
Ward,  30  W.  Va.  204,  8  Am. 
Rep.   22    (1SS7). 

United  States.  Hawkins  v. 
Blake,  lOS  U.  S.  422.  27  L.  ed.  775 
(1S82);  Russell  v.  Howard,  2  Mc- 
Lean 489    (1841). 

It  is  indispensable  that  all  the 
parties  in  interest  should  be  be- 
fore the  court  so  that  the  decree 
shall  be  final  and  conclusive  upon 
their  rights,  or  at  least  that  the 
fund  should  be  so  before  the  court 
that  the  judgment  may  operate  tJi 
rem.  Shedd  v.  Brattleboro  Bank, 
32  Vt.  709   (1S60). 

40.  Boone  v.  Clark,  129  111.  466 
(1889);  Evertson  v.  Booth,  19 
Johns.  (X.  Y.)  486  (1822). 

41.  Alabama.  Chardavoyne  v. 
Galbraith,  SI  Ala.  .521   (1886). 

Illinois.  Dormueil  v.  "Ward,  108 
111.  216   (1883). 


Maine.  Spear  v.  Spear,  97  Me. 
498  (1903);  Wyman  v.  Fox,  59  Me. 
100   (1871). 

Michigan.  Campbell  v.  Western 
Electric  Co.,  113  Mich.  333,  337 
(1897). 

Mississippi.  Citizens'  Bank  v. 
Budding,  65  Miss.  284  (1887). 

New  Jersey.  Francis  v.  Law- 
rence, 4S  X.  J.  Eq.  508   (1891). 

Pennsylvania.  Fowler 's  Appeal, 
87  Pa.  449   (1S78). 

Rhode  Island-  McKenna  v.  Crow- 
ley, 16  R.  I.  364  (1888). 

Tennessee.  Harrison  v.  Hallum, 
5  Cold.  525  (1868). 

Virginia.  Crowder  v.  Garber,  97 
Va.  565   (1899). 

A  fraudulent  conveyance  should 
not  be  set  aside  as  to  the  parties 
to  it,  but  only  as  to  the  complain- 
ing creditor.  Therasson  v.  Hickok, 
37  Vt.  454   (1865). 


EQUITABLE  REMEDIES 


719 


to  convey  to  the  plaintiff,^^  or  by  ordering  the  premises 
to  be  sold  by  a  master  or  receiver  and  the  proceeds 
applied  in  the  satisfaction  of  the  debt,^^  or  else  by  com- 
pelling the  fraudulent  grantee  to  pay  the  plaintiff's 
demand. ^^ 


42.  Delaware.  Newell  v.  Mor- 
gan, 2   Harr.  225    (1837). 

Florida.  Robinson  v.  Springfield 
Co.,  21  Fla.,  203   (1885). 

Illinois.  Mitchell  v.  Byrns,  67 
111.  522    (1873). 

Maine.  Dockray  v.  Thurston,  43 
Me.  216  (1857);  Gardiner  Bank  v. 
Wheaton,  8  Me.  373   (1832). 

Michigan.  Harwood  v.  Under- 
wood, 2S  Mich.  427   (1874),  semhle. 

Mississippi.  Carlisle  v.  Tindall, 
49  Miss.  229  (1873),  semble. 

New  Jersey.  Haggerty  v.  Nixon, 
26  N.  J.  Eq.  42   (1875). 

43.  Davidson  v.  Burke,  143  111. 
139,  36  Am.  St.  Rep.  367  (1892); 
Hunt  V.  Knox,  .34  Miss.  655  (1857); 
Dudley  v.  Buckley,  68  W.  Va.  630 
(1911). 

As  to  sale  by  master,  see  Miller 
V.  Sherry,  2  Wall.  (U.  S.)  237,  17 
L.  ed.  827  (1864).  In  this  case  it 
was  held  that  a  conveyance  made 
by  the  master  was  as  effectual  as 
one  executed  by  the  party  himself, 
but  the  ordinary  practice  is  for  the 
master  to  conduct  the  sale,  the 
party  himself  executing  the  deed. 
As  to  sale  by  receiver,  see  Gage 
V.  Smith,  79  111.  219  (1875);  San- 
derson V.  Stackdale,  11  Md.  563 
(1857);  Kuhl  v.  Martin,  26  N.  J. 
Eq.  60  (1875);  Bloodgood  v.  Clark, 
4  Paige   (N.  Y.)  574   (1834). 

Where  a  sale  is  directed,  the  pro- 
ceeds are  brought  into  court  and 
are  distributed  under  the  direction 
of  the  court,  reserving  all  the 
equities  of  the  parties.  Norburg 
V.  Ricords,  84  Md.  568   (1897). 


Where  there  are  prior  liens,  the 
decree  should  ascertain  the 
amounts  and  priorities  and  order 
a  sale  to  satisfy  the  same  as  well 
as  the  claim  of  the  plaintiff.  Dent 
V.  Pickens,  50  W.  Va.  382   (1901). 

Before  a  sale  is  ordered,  the 
court  by  an  interlocutory  decree 
should  ascertain  the  precise  amount 
of  the  debt  and  allow  a  reasonable 
time  for  the  debt  to  be  paid. 
Cohen  v.  Carroll,  5  S.  &  M.  (Miss.) 
545  (1846);  Lewis  v.  Baker,  1 
Head   (Tenn.)   385   (1858). 

In  A'irginia,  a  sale  will  not  be 
ordered  if  it  appears  that  the  rents 
and  profits  of  the  land  will  satisfy 
the  judgment  in  five  years.  Cronie 
V.  Hart,  18  Gratt.  (Va.)  739  (1868). 
But  such  is  not  the  rule  in  West 
Virginia.  Dudley  v.  Buckley,  68 
W.  Va.  630   (1911). 

44.  Hartshorn  v.  Eames,  31  Me. 
103  (1849);  Solmsky  v.  Lincoln 
Sav.  Bank,  85  Tenn.  368  (1886). 
In  Corey  v.  Greene,  51  Me.  114 
(1863),  which  was  a  case  where  a 
debtor  paid  the  purchase  price,  but 
caused  the  conveyance  to  be  made 
to  a  third  party  for  the  purpose  of 
deceiving  creditors,  thus  creating 
a  resulting  trust  in  favor  of  such 
debtor  which  could  be  taken  ad- 
vantage of  by  his  creditors,  the 
court  said:  "Nor  is  there  any  dif- 
ficulty in  affording  relief  in  such 
eases.  If  the  value  of  the  prop- 
erty held  in  fraud  exceeds  the 
amount  of  the  plaintiff's  demand, 
there  may  be  a  decree  that  the 
grantee  shall  pay  such  demand,  as 


720 


EQUITY  PRACTICE 


Third,  where  the  suit  is  brought  under  special  statutes 
to  reach  and  apply  unattachable  property  directly, 
whether  fraudulently  conveyed  or  not,  without  first  ex- 
liausting  the  legal  remedy,  the  relief  available  is  either 
to  compel  a  conveyance  or  assignment  of  the  property 
directly  to  the  plaintiff,  when  the  amount  of  the  debt 
exceeds  the  value  of  the  property,"*^  or  to  order  a  sale 
of  the  property  to  be  effected  by  the  master,^"  or  to  ap- 
point a  receiver,  where  the  nature  and  situation  of  the 
property  render  it  appropriate.  The  court  will  compel 
an  assignment  to  be  made  to  him  and  will  authorize 
him  to  sell  and  apply  the  proceeds  as  equity  may 
require.'*^ 

in  Hartshorn  v.  Eames,  31  Me.  103. 


If  the  debt  exceeds  the  value  of 
the  property,  or  the  grantee  has 
already  paid  other  debts  of  the 
cestui  que  trust  out  of  it,  as  in 
Gardiner  Bank  v.  Wheaton,  8  Me. 
373,  a  master  may  be  appointed 
as  in  that  case  to  determine  the 
value  of  his  remaining  interest; 
for  what  sum  he  shall  release  it 
and  how  much  the  creditor  shall 
allow  the  debtor  for  it." 

In  Gardiner  Bank  v.  Hodgdon, 
14  Me.  453  (1837),  where  a  bill 
of  sale  of  a  chattel  was  executed 
by  the  debtor  to  a  third  party  in 
fraud  of  creditors  and  the  chattel 
allowed  to  remain  in  the  hands  of 
the  debtor,  such  third  party  was 
compelled  to  pay  the  amount  of 
the  plaintiff's  claim. 

But  in  Wise  v.  Pfaff,  98  Md.  576 
(1904),  a  decree  was  held  to  be 
unwarranted  which  directed  that 
the  fraudulent  grantee  who  still 
held  the  land  should  pay  the  plain- 
tiff's demand  within  a  certain  time 
or  the  property  be  sold. 

45.  Dockray  v.  Thurston,  43  Me. 
216  (1857);  Gardiner  Bank  v. 
Wheaton,  8  Me.  373   (1832). 


46.  Wilson  v.  Martin-Wilson  Co., 
151  Mass.  515  (1890). 

It  is  sometimes  the  practice  to 
order  the  owner  to  execute  an  as- 
signment, or  in  case  he  does  not 
do  so,  to  appoint  a  trustee  to  make 
the  conveyance.  Waterman  v. 
Cochran,  12  Vt.  699  (1839);  Agar 
V.  Murray,  105  U.  S.  126,  26  L.  ed. 
942   (1881). 

47.  Alabama.  Maxwell  v.  Peters 
Shoe  Co.,  109  Ala.  371   (1895). 

Illinois.  E.  A.  Moore  Furniture 
Co.  V.  Prussing,  71  111.  App.  666 
(1897). 

Michigan.  Campau  v,  Detroit 
Driving  Club,  144  Mich.  80 
(1906). 

New  Jersey.  Tenbrook  v.  Jesup, 
60  N.  ,T.  Eq.  234   (1900). 

Virginia.  Smith  v.  Butcher,  28 
Gratt.  Va.  144  (1877). 

United  States.  Mellen  v.  Iron 
Works,  131  U.  S,  352  (1888),  33 
L.  ed.  352   (1888). 

See  Chapter  XXVII,  "Keceiv- 
ers, "  post,  pp.  773  et  seq. 

It  may  be  said  that  in  general 
the  court  will  appoint  a  receiver 
on  creditors'  bills  whenever  it  ap- 
pears that  the  property  is  in  peril 


EQUITABLE  REMEDIES 


721 


In  any  of  the  above  classes  of  cases,  where  the  fraudu- 
lent donee  has  sold  the  property  conveyed  to  him  ^^  or 
received  it  in  the  form  of  money  ^^  a  decree  may  be  ren- 
dered against  him,  personally  compelling  him  to  account 
for  the  value  of  the  property  or  the  money  so  received, 
but  no  more.^° 

§  448.  Dissolution  of  partnership.  A  partnership  may 
be  dissolved  by  the  termination  of  the  partnership  agree- 
ment either  by  act  of  the  parties,  by  operation  of  law 
ipso  facto,  or  by  decree  of  court.     The  only  judicial 


or  in  danger  of  waste.  Runals  v. 
Harding,  83  111.  75  (1876).  In 
some  cases  it  is  held  that  it  is 
usual  and  proper  to  appoint  a  re- 
ceiver whenever  the  bill  is  filed  to 
reach  choses  in  action  and  equita- 
ble interests.  German  Am.  Sem.  v. 
Saluger,  66  Mich.  249  (1887);  Aus- 
tin V.  Figueira,  7  Paige  (N.  Y.)  56 
(1838).  Or  almost  as  a  matter  of 
course  where  the  equity  of  the  bill 
is  not  denied.  Gage  v.  Smith,  79 
111.  219  (1875);  Bloodgood  v.  Clark, 
4  Paige  (N.  Y.)  574  (1834).  It  is 
a  matter  of  discretion  with  the 
court,  however,  and  it  is  often  ex- 
tremely cautious,  refusing  to  ap- 
point a  receiver  except  under  spe- 
cial circumstances  requiring  sum- 
mary relief.  Pennell  v.  Lamar  Ins. 
Co.,  73  111.  303  (1874);  Furlong  v. 
Edwards,  3  Md.  99  (1852);  Dutton 
v.  Thomas,  97  Mich.  93  (1893); 
Rankin  v.  Rothschild,  78  Mich.  10 
(1889). 

48.  Gordon  v.  Lowell,  21  Me.  251 
(1842);  Sargent  v.  Salmond,  27  Me. 
548  (1847);  Hubbell  v.  Currier,  10 
Allen  (Mass.)  333  (1865).  See 
also  McCann  v.  Randall,  147  Mass. 
81   (1888). 

49.  Taylor  v.  Taylor,  74  Me.  582 
(1900),  where  a  pure  money  recov- 
ery was  decreed  against  a  creditor 

Whltehouse  E.  P.  Vol.  I — 46 


of  an  insolvent  corporation,  who 
had  been  paid  the  amount  of  his 
debt  by  a  fraudulent  preference. 
But  a  decree  for  mere  damages  will 
not  be  granted.  Taylor  v.  Taylor, 
74  Me.  582  (1883);  Dunphy  v. 
Kleinschmidt,  11  Wall.  (U.  S.)  610, 
20  L.  ed.  223   (1870). 

50.  Sargent  v.  Salmond,  27  Me. 
548    (1847). 

This  is  especially  so  where  the 
sale  is  made  to  a  bana  fide  pur- 
chaser. Best  V,  Fuller  Co.,  185 
111.  43  (1900);  and  see  Vance  Shoe 
Co.  V.  Haught,  41  W.  Va.  275 
(1895). 

The  court  may  award  a  money 
decree  where  the  specific  property 
cannot  be  recovered.  Solinsky  v. 
Lincoln  Savings  Bank,  85  Tern. 
368   (1886). 

A  personal  decree  may  be  made 
against  fraudulent  grantors  and 
grantees,  upon  a  confirmation  of  a 
sale,  for  the  amount  of  a  deficien- 
cy. Citizens'  Mutual  Ins.  Co.  v. 
Ligon,  59  Miss.  305  (1882);  Hin- 
ton  V.  Ellis,  27  W.  Va.  422  (1885). 
But  a  personal  decree  will  not  be 
awarded  where  the  specific  prop- 
erty can  be  subjected  to  payment. 
Vance  Shoe  Co.  v.  Haight,  41  W. 
Va.  275  (1895). 


722  EQUITY  PRACTICE 

tribunal  in  which  a  decree  of  dissolution  can  be  obtained 
is  a  court  of  equity.  The  remedy  of  dissolution  by  decree 
in  equity  may  be  applied  in  the  following  cases :  1,  fraud 
in  the  creation  of  the  partnership;^^  2,  insanity  or  inca- 
pacity of  a  partner; '^-  3,  misconduct  of  a  partner;  ^^  4, 
impracticability  of  continuing  successfully.^^ 

Whenever  a  dissolution  is  granted  the  court  also  pro- 
ceeds to  grant  the  necessary  incidental  relief,  and  as 
a  matter  of  course  decrees  an  account,  and  a  final  settle- 
ment and  winding  up  of  the  partnership.  If  necessary 
an  injunction  will  be  issued  to  restrain  the  disposition 
of  any  of  the  property  and  a  receiver  appointed  to  take 
charge  of  all  the  partnership  affairs.^''  The  final  decree 
should  fix  the  date  at  which  the  dissolution  is  deemed  to 
have  taken  place.^*^  As  a  general  rule  and  in  the  absence 
of  any  agreement  to  the  contrary,  any  partner  has  a 
right  to  insist  upon  a  sale  of  the  assets  and  division- of 
the  net  proceeds  in  cash.^^    But  an  equitable  division  in 

51.  This  may  be  ground  for  de-  partnership  proceedings  will  be  de- 
claring the  partnership  void  ab  creed  unless  the  facts  shown  are 
mitio.  Kiehards  v.  Todd,  127  such  as  would,  upon  final  hearing, 
Mass.  167  (1879) ;  Smith  v.  Ever-  entitle  plaintiff  to  a  decree  of  dis- 
ett,  126  Mass.  304  (1879).  Or  for  solution.  Sieghornter  v.  Weissen- 
dissolution  proper.  Oteri  v.  Scalzo,  born,  20  N.  J.  Eq.  172  (1869). 
145  U.  S.  578,  36  L.  ed.  824  (1891).  56.  Abrahams   v.   Myers,  40  Md. 

52.  Whitwell  v.  Arthur,  35  Beav.  499   (1874). 

(Eng.      Ch.)      140;      Raymond      v.  57.  Freeman     v.     Freeman,     136 

Vaughn,   128   111.   256    (1889).  Mass.   260    (1884).     A   sale   is   the 

53.  Howell  V.  Harvey,  5  Ark.  usual  method  of  settling  a  part- 
270  (1843),  habitual  drunken-  nership.  Groth  v.  Payment,  79 
ness;  Essell  v.  Hayward,  30  Beav.  Mich.  290  (1890);  Slemmers'  App., 
(Eng.  Ch.)  158;  Seighornter  v.  58  Pa.  St.  168,  98  Am.  Dec.  255 
Weissenborn,  20  N.  J.  Eq.  172  (1868);  Pierce  v.  Trigg,  10  Lea 
(1869).  But  not  where  the  partner  (Tenn.)  423  (1839);  Burns  v.  Ko- 
complaining  is  himself  at  fault.  senstein,  135  U.  S.  449,  34  L.  ed. 
Fairthorne  v.  Weston,  3  Hare  193  (1889).  Where  on  dissolution 
(Eng.  Ch.)  387;  Gerard  v.  Gateau,  of  a  partnership  the  sale  of  the 
84  111.  121   (1876).  partnership   property   would   under 

54.  Sieghornter  v.  Weissenborn,  the  circumstances  give  an  advan- 
20  N.  .1.  Eq.  172  (1869);  Rosen-  tage  to  one  of  the  partners  in  the 
stein  V.  Burns,  41  Fed.  841   (1882).  bidding,  the  court   on  payment   of 

55.  No  receiver  or  injunction  in  _    all  debts  may  divide  the  property 


EQUITABLE  REMEDIES 


723 


kind  may  be  directed  where  no  one  objects.^®  After  all 
assets  have  been  reduced  to  money  and  a  final  account 
taken,  if  a  balance  is  found  due  any  partner  a  decree  for 
the  amount  may  be  made  in  his  favor  against  the  other 
partners  liable.-^'' 

§  449.  Account.  The  procedure  in  taking  an  account 
is  as  follows:  Where  the  defendant's  liability  to 
account  is  denied,  the  right  to  an  account  must  first  be 
determined,^"  and  if  the  court  should  conclude  that  noth- 
ing is  due,  no  further  proceedings  will  be  allowed  and 
the  bill  will  be  dismissed.*'^  If  the  court  is  satisfied  that 
the  plaintiff  is  entitled  to  an  account,  the  decree  is  that 
an  account  be  taken.^^    This  may  then  be  done  either  by 


in  specie.  Kelley  v.  Shea,  206  Pa. 
208  (1903).  A  decree  may  order 
that  on  dissolution  of  the  partner- 
ship all  the  estate  and  assets  shall 
be  assigned  and  transferred  to  the 
one  or  more  of  the  partners  who 
shall  offer  to  pay  or  secure  to  be 
paid,  within  a  reasonable  time,  the 
highest  price  for  the  same.  Slem- 
mers'  App.,  58  Pa.  St.  168,  98  Am. 
Dec.  255  (1868).  A  settlement  by 
a  valuation  of  assets  by  the  court 
is  inadmissible.  Sigourney  v. 
Munn,  7  Conn.  20   (1828). 

58.  Strong  v.  Lord,  107  111.  25 
(1883). 

59.  Eosenstiel  v.  Gray,  112  111. 
282  (1884);  Little  v.  Merrill,  62 
Me.  328  (1873);  Eandall  v.  Mor- 
rell,  17  N.  J,  Eq.  343  (1866).  In 
Burleigh  v.  White,  70  Me.  130 
(1879),  it  was  held  that  if  one 
owner  has  converted  to  his  own 
use  more  than  his  proportion  of 
the  proceeds  from  the  joint  estate, 
the  court,  in  making  a  final  settle- 
ment between  the  parties,  will  de- 
cree to  the  other  owner  a  lien  for 
such   excess   upon   the    estate    left, 


with    suitable   provisions    to    make 
the  lien  effectual. 

In  a  suit  for  the  dissolution  of 
a  partnership,  the  settlement  of 
the  business  and  the  distribution 
of  the  assets,  the  court  under  a 
prayer  for  general  relief  may  ap- 
ply the  firm  assets  in  payment  of 
the  firm  debts.  Veneman  v.  Euckle, 
120  111.  App.  251   (1905). 

60.  Legare  v.  Peacock,  109  111. 
94  (1884);  Neale  v.  Hagthrop,  3 
Bland  (Md.)  551  (1841);  Standish 
V.  Babcock,  48  N.  J.  Eq.  386 
(1891);  Collyer  v.  Collyer,  38  Pa. 
St.  257  (1861);  Cobb  v.  Jameson, 
1  Tenn.  Ch.  604  (1874). 

61.  Adams  v.  Gaubert,  69  111. 
585  (1873);  Neale  v.  Hagthrop,  3 
Bland.  (Md.)  551  (1841);  Hunt  v. 
Gordon,  52  Miss.  194  (1876);  Stout 
V.  Seabrook's  Ex'rs,  30  N.  J.  Eq. 
187  (1878);  Lee  County  Justices 
V.  Fulkerson,  21  Gratt.  (Va.)  182 
(1871). 

62.  Hudson  v.  Trenton  Co.,  16  N. 
J.  Eq.  475  (1864).  This  interlocu- 
tory decree  that  an  account  be 
taken  is  not  appealable.  Dan.  Ch. 
Pr.   (6th  Am.  ed.),  p.  147L 


72i  EQUITY  PRACTICE 

the  court  itself,  if  it  sees  fit,"''  or  by  a  master  in  chan- 
cery.*^ ^  The  practice  of  having  the  account  taken  by 
the  court  itself,  however,  is  to  be  condemned  as  a  gen- 
eral rule,*^^  and  especially  where  the  account  is  com- 
plicated and  conflicting  testimony  is  offered.*^'' 

Where  the  account  is  referred  to  a  master,  the  better 
practice  is  for  the  court  to  determine  first  the  principles 
of  law  governing  the  rights  of  the  parties  and  the  con- 
struction and  effect  of  agreements  between  them,  by 
which  their  mutual  dealings  were  regulated  and  by  which 
the  account  must  be  controlled.*^'^  This  is  not  indis- 
pensable*^* in  all  cases  however,  since  in  many  cases 
seeking  merely  an  accounting  no  important  question  of 
law  or  construction  of  contract  is  presented.  The  account 
may  also  be  taken  without  such  preliminary  determina- 
tion by  consent  of  parties.*'*'  The  order  of  reference 
should  at  any  rate  direct  the  matters  to  which  the  account 
shall  extend  and  if  necessary  should  give  special  direc- 
tions as  to  the  manner  of.  taking  the  account  under  the 

63.  Glover  v.  Jones,  95  Me.  303  wealth  v.  Archibald,  195  Pa.  317 
(1901);    McCarthy    v.    Gordon,    97       (1900). 

N.   E.   88    (Mass.   1912);    Campbell  65.  Barnabee      v.      Beekley,      43 
V.   Campbell,  8  M.  J.  Eq.  738,  743  Mich.   613    (1880). 
(1851).     Especially     where     plead-  66.  It  has  been  held  error  on  ap- 
ings  disclose   the   amount.     Hix  v.  peal.     Trench  v.  Gibbs,  105  111.  523 
Hix,    25    W.    Va.    481    (1882).      Or  (1883);  Whittemore  v.  Fisher,  132 
where    matter   is    simple    and   free  I"-    243     (1890);    St.    Colorabe    v. 
from  complications.     May  v.  May,  United  States,  7  Pet.  625   (1833). 
19    Fla.    373    (1882);    McGillis    v.  67.  Moffitt    v.    Banner,    154    111. 
,,             10f^  Til    1-r   ^Qn1^  649    (1895);    Hunt    v.    Gordon,    52 
Hogan,  190  111.  1/6   (1901).  ^          ,,„-^x     tt    .              m 
^     '                    .       ^                  i.  Miss.  194  (1876);  Hudson  v.  Tren- 

64.  See    examples      of      accounts  ^^^  ^^  ^  ^^  ^^,^  ^    ^^    ^^^   ^^^^^^^ 

taken  by  master  in  the  practice  of  ^^^^   ^    Williams,    1    Lea    (Tenn.) 

various    states    given    in    Chapter  ^^    n878") 

XX,  "Masters,"  Sec.  355,  ante,  p.  gg^  g^^,^^    ^,     Pinkerton,    3    Edw. 

581.  Ch.    (N.   Y.)    70    (1837);    Burns   v. 

In  Pennsylvania  it  is  in  the  dis-  Rosenstein,    135    U.   S.   449,    34    L. 

cretion    of    the    court    whether    to  e<l.   193   (1889). 

refer   an    account    to    a   master    or  69.  Hicks  v.  Hogan,  36  Ark.  298, 

call  in  an   accountant   to   sit   with  302    (1880). 
the  court  as  an  assessor.    Common- 


EQUITABLE  REMEDIES  725 

particular  circumstances  of  the  caseJ^  The  master  after 
reference  of  the  account  to  him  should  call  for  the  neces- 
sary memoranda  and  books  of  account,  and  if  the  cir- 
cumstances or  the  parties  require  it  the  account  may  be 
disputed  and  proved  by  hearing  and  testimony  before 
the  master  in  the  usual  way. 

The  account  when  reported  by  the  master  should  state 
fully  the  facts  found  by  him  so  that  they  can  be  under- 
stood without  reference  to  the  testimony '^^  when  the 
account  is  at  all  complicated; '^  and  should  state  what 
items  are  allowed  or  disallowed  so  that  exceptions  may 
be  taken  J  ^  When  the  exceptions,  if  any,  have  been  dis- 
posed of  and  the  report  confirmed,  final  decree  will  be 
rendered  in  accordance  with  the  account,  and  complete 
relief  afforded  by  compelling  the  payment  of  any  balance 
found  due.'^* 

§  450.  Money  recoveries — Damages.  There  are  many 
cases  belonging  to  the  concurrent  jurisdiction  of  equity 
where  the  sole  remedy  applied  is  a  recovery  of  money, '^^ 

70.  Hudson  v.  Trenton  Co.,  16  74.  Where  an  account  is  ordered 
N.  J.  Eq.  476  (1869).  For  method  both  parties  become  actors,  so  that 
of  taking  accounts  prescribed  by  if  a  balance  is  found  due  to  the 
the  court  in  cases  of  redemption  defendant,  it  should  be  decreed  to 
of  mortgages,  see  Ireland  v.  Ab-  him  even  though  no  cross  bill  or 
bott,  24  Me.  155  (1844),  and  Pierce  counter  claim  has  been  interposed. 
V.  Faunce,  53  Me.  351   (1865).  Thomas  v.  Turner,  157  111.  App.  16 

71.  Herrick  v.  Belknap,  27  Vt.  (1910);  Payne  v.  Graves,  5  Leigh 
673  (1854).  See  Sec.  363,  ante,  p.  561  (1834).  See  Chapter  VI, 
597.  "Bills    Not    Original,"    Sec.    141, 

72.  Frazier    v.    Swain,    36   N.   J.  note  89,  ante,  p.  273. 

Eq.  156  (1882);  Moore  v.  Hunting-  75.  Taylor  v.  Taylor,  74  Me.  582 

ton,    17    Wall.    417,   21    L.    ed.    642  (1883).     In   this   case   the   distinc- 

(1873).  tion  between  a  mere  money  recov- 

73.  Ransom  v.  Winn,  18  How.  ery  and  an  assessment  of  damages 
295  (1855).  The  master  may  an-  proper  is  clearly  pointed  out  and 
nex   schedules    to    the    report    con-  acted  upon. 

taining  items  of  the  particular  por-  In  some  states  a  vendor  may  ob- 

tions  of  the  account  which  are  in  tain    specific    performance    from    a 

question  and  refer  to  them  in  the  vendee   of  a   contract   to   purchase 

report.     Craig  v.  McKinney,  72  111.  land,  in  which  case  the  remedy  is 

314    (1879).  a  pure  money  recovery. 


726  EQUITY  PRACTICE 

althougli  the  remedy  in  siicli  case  is  of  exactly  the  kind 
and  enforced  in  exactly  the  same  way  as  an  action  at 
law.  Even  the  remedy  of  an  assessment  of  damages 
may  be  granted  in  equity  incidentally  and  in  addition 
to  any  other  relief  of  an  equitable  nature,  on  the  prin- 
ciple that  a  court  of  equity  having  obtained  jurisdiction 
of  a  cause  upon  any  equitable  ground  will  go  ahead  and 
grant  complete  relief  even  though  the  remedy  required 
be  purely  legal  in  its  nature,  as  has  been  shown  at  some 
length  above.' ^  But  it  may  be  laid  down  as  a  general 
rule  that  the  remedy  of  compensation  in  damages  will 
not  be  granted  by  a  court  of  equity  where  it  is  the  sole 
relief  sought,"'  except  in  three  classes  of  cases. 

The  first  of  the  exceptions  to  the  general  proposition 
refers  to  those  cases  which  are  within  the  exclusive  juris- 
diction of  equity,  but  which  are  of  such  a  nature  that 
pecuniary  compensation  or  damages  is  the  only  relief 
required.  Instances  are  where  a  trustee  has,  by  breach 
of  trust,  injured  the  property;  or  where  there  has  been 
a  part  performance  of  a  parol  contract  for  the  purchase 

Illinois.      Eobinson   v.   Appleton,  This    general    rule    that    equity 

124  111.  276   (1888).  does    not    take    jurisdiction    where 

Maryland.     Maryland  Co.  v.  Ku-  damages  constitute  the  sole  remedy 

per,  90  Md.  529   (1900).  sought  rests  upon  the  fact  that  in 

Massachusetts.        Chauncey        v.  nearly   every   case   where   damages 

Leominster,   172  Mass.  340   (1899).  are  the  sole  mode  of  relief  the  rem- 

Mississippi.      Memphis      Co.      v.  edy  by  judgment  for   damages,  at 

Scruggs,  50  Miss.  284   (1874).  law,  is  not  only  complete  and  ade- 

New   Jersey.     Hart   v.  Eich,  59  quate  but  more  convenient  and  ap- 

N.  J.  Eq.  402   (1900).  propriate.     The     award     of     mere 

United  States.     Cathcart  v.  Kob-  compensatory   damages,   which   are 

inson,  5  Pet.  264,  278  (1831).  almost    always    unliquidated,    is    a 

Contra.      Porter   v.   Frenchmen's  remedy  peculiarly  belonging  to  the 

Co.,   84   Me.    195    (1892);    Eckstein  province  of  the  courts  of  law,  re- 

V.  Downing,  64  N.  H.  248   (1886);  quiring  the  aid  of  a  jury  at  their 

Smaltz's  App.,  99  Pa.   311    (1882).  assessment,    and    inappropriate    to 

76.  See  Chapter  II,  "Jurisdic-  the  judicial  position  and  functions 
tion,"  Sec.  24,  ante,  pp.  22  et  seq.  of  a  chancellor. 

77.  Pomeroy  (2d  ed.),  Sees.  78- 
237;  Taylor  v.  Taylor,  74  Me.  582 
(1883). 


EQUITABLE  REMEDIES  727 

of  land  and  the  vendee  has  since  sold  it  to  a  bona  fide 
purchaser  for  a  valuable  consideration  without  notice. 
In  the  latter  case  specific  performance  is  impossible ;  and 
the  contract  being  by  parol,  there  is  no  remedy  at  law, 
and  equity  should   decree  compensation  in  damages^** 

The  second  exception  includes  those  cases  where  the 
court  has  taken  jurisdiction  originally  to  grant  some 
purely  equitable  relief  such  as  the  specific  performance 
of  a  contract  or  the  rescission  or  cancellation  of  some 
instrument,  and  it  appears  at  the  hearing  that,  unknown 
to  the  plaintiff  at  the  time  of  filing  the  bill,  the  special 
relief  prayed  for  was  then  or  has  since  become  imprac- 
ticable, or  that  the  defendant  has  purposely  disabled  him- 
self from  performing  the  specific  act  of  relief  prayed  for. 
The  court  then  may  and  generally  will,  instead  of  com- 
pelling the  plaintiff  to  incur  the  double  expense  and 
trouble  of  an  action  at  law,  retain  the  case,  decide  all 
the  issues  involved,  and  decree  the  payment  of  mere 
compensatory  damages/^ 

The  third  exception  is  where  the  remedy  at  law  by 
damages  does  not  offer  that  complete  and  adequate  relief 
which  a  decree  for  damages  in  equity  affords,  owing  to 
some  peculiar  advantage  of  equitable  procedure.  This 
class  includes  those  cases  which  are  sustained  in  equity 
on  the  ground  of  preventing  a  multiplicity  of  suits  with- 
out any  other  equitable  feature.^*'  The  sole  relief  sought 
in  some  of  such  cases  may  be  damages,  which  the  plain- 
tiff would  ordinarily  be  compelled  to  seek  in  an  action 
at  law,  but  the  equitable  proceeding  has  the  peculiar 
advantage  of  settling  the  whole  matter  in  one  suit  and 
therefore  really  affords  more  complete  relief. 

78.  Story's  Eq.  Jurisp.  (13th  tion,  the  latter  proving  imprac- 
ed.),  Sec.  794.  ticable,  damages  alone  were  award- 

79.  Woodman  v.  Freeman,  25  Me.  ed,  under  the  particular  circum- 
544   (1846);   Stewart  v.  Joyce,  205  stances  of  the  case 

Mass.  371  (1910).    See  also  Brande  80.  Carlton   v.   Newman,   77    Me. 

V.    Grace,    154    Mass.    210    (1891),      408   (1885). 
where    on    a    bill    seeking    injunc- 


728  EQUITY  PRACTICE 

In  either  of  the  above  eases,  whether  of  money  recovery 
or  damages,  the  remedy  may  be  and  usually  is  effected 
by  ordering  an  execution  to  issue  in  the  same  way  as 
at  law. 


CHAPTER  XXVI 

INJUNCTIONS 

§  451.  Definition.  A  writ  of  injunction  is  a  judicial 
process,  whereby  a  party  is  required  to  do  or  refrain 
from  doing  a  particular  thing. 

§  452.  Kinds  of  injunctions.  Injunctions  are  classi- 
fied in  respect  to  the  relief  which  they  give  as  being 
either  preventive  or  mandatory;  and  in  respect  to  the 
stage  of  the  cause  at  which  they  are  obtained  as  being 
either  preliminary  and  temporary,  or  permanent.  A  pre- 
ventive injunction  is  one  which  orders  the  defendant  to 
refrain  from  doing  a  particular  thing;  most  injunctions 
are  of  this  kind.  A  mandatory  injunction  is  one  which 
commands  a  certain  act  to  be  done.  The  right  to  grant 
mandatory  injunctions,  though  well  established,  is  much 
less  frequently  exercised,^   and  preliminary  mandatory 

1.  Mandatory    injunctions    were  Tennessee.      State     v.     Maloney, 

granted  in  the  following  cases:  108  Tenn.  82   (1901). 

Illinois.     Hartman  v.  Wells,  257  West    Virginia.      Lovett    v.    W. 

111.  167   (1913);  New  Haven  Clock  Va.,  etc.,   Gas  Co.,  65   W.   Va.   739 

Co.   V.  Kochersperger,   175   111.   383  (1909). 

(1898).  United  States.      Ex    parte    Len- 

Maine.     Maine  Wharf  v.  Custom  non,  166  U.  S.  548,  41  L.  ed.  1110 

House   Wharf,  85   Me.   175    (1892).  (1896);     Pokegama,     etc.,     Co.     v. 

Maryland.      Washington    Co.    v.  Klamath,  etc.,  Co.,  86  Fed.  528  (C. 

School      Commrs.,      77      Md.      283  C.   1898). 

(1893).  The  general  principles  on  which 

Massachusetts.      Curtis,   etc.,  Co.  such   injunctions   are    granted   and 

V.  Spencer,  etc.,  Co.,  203  Mass.  448  the    exceptions    thereto    are    well 

(1909);    Codman    v.    Bradley,    201  stated  in  the  two  following  cases: 

Mass.   361    (1909).  Lynch    v.     Union     Institution     for 

Mississippi.     Seherk  v.  Montgom-  Savings,  159  Mass.  306  (1893).  "In 

ery,  81  Miss.  426   (1903).  general,    where    a    defendant    has 

729 


730  EQUITY  PRACTICE 

injunctions  are  rare.-     A  preliminary  injunction  is  an 


gone  on  without  right  and  without 
excuse  in  an  attempt  to  appropri- 
ate the  plaintifif's  property,  or  to 
interfere  with  his  rights,  and  has 
changed  the  condition  of  his  real 
estate,  he  is  compelled  to  undo,  so 
far  as  possible,  what  he  has  wrong- 
fully done  affecting  the  plaintiff, 
and  to  pay  the  damages.  In  such 
a  case  the  plaintiff  is  not  compelled 
to  part  with  his  property  at  a  val- 
uation, even  though  it  would  be 
much  cheaper  for  the  defendant 
to  pay  the  damages  in  money  than 
to  restore  the  property.  The  prin- 
cipal reason  for  this  is  that  which 
lies  at  the  foundation  of  the  juris- 
diction for  decreeing  specific  per- 
formance of  contracts  for  the  sale 
of  real  estate.  A  particular  piece 
of  real  estate  cannot  be  replaced 
by  any  sum  of  money,  however 
large,  and  one  who  wants  a  par- 
ticular estate  for  a  specific  use,  if 
deprived  of  his  rights,  cannot  be 
said  to  receive  an  exact  equiva- 
lent or  complete  indemnity  by  the 
payment  of  a  sum  of  money." 

Starke  v.  Eichmond,  155  Mass. 
188  (1892).  "It  is  not  every  case 
of  a  permanent  obstruction  in  the 
use  of  an  easement  that  entitles 
the  aggrieved  party  to  a  restora- 
tion of  the  former  situation.  Each 
case  depends  on  its  own  circum- 
stances. It  is  for  the  court,  in  the 
exercise  of  a  sound  discretion,  to 
determine  in  such  instances  wheth- 
er a  mandatory  injunction  shall  is- 
sue. It  will  not  be  issued  when  it 
appears  that  it  will  operate  in- 
equitably and  oppressively,  nor 
when  it  appears  that  there  has 
been  unreasonable  delay  by  the 
party    seeking    it    in    the    enforce- 


ment of  his  rights,  nor  when  the 
injury  complained  ot  is  not  serious 
or  substantial,  and  may  be  readily 
compensated  in  damages,  while  to 
restore  things  as  they  were  before 
the  acts  complained  of  would  sub- 
ject the  other  party  to  great  in- 
convenience and  loss." 

See  also  Coombs  v.  Lenox  Real- 
ty Co.,  88  Atl.  471  (Me.  1913),  and 
McCabe  v.  Watt,  224  Pa.  253 
(1904). 

2.  Delaware.  Poole  v.  Eehoboth, 
80  Atl.  683  (1911);  Gray  v.  New- 
ark, 79  Atl.  735  (1911);  Tebo  v. 
Hazel,  74  Atl.  841  (1909). 

Florida.  Ocala  v.  Anderson,  58 
Fla.  415   (1909). 

Illinois.  Chicago  v.  People's, 
etc.,   Co.,   170   111.   App.   98    (1912). 

Maryland.  Clayton  v.  Shoe- 
maker, 67  Md.  216  (1887).  See 
Code,  Art.   16,  Sec.  190. 

Michigan.  Gates  v.  R.  Co.,  151 
Mich.    548,    552    (1908). 

Mississippi.  Pearman  v.  Wig- 
gins, 60  So.  1  (1913);  Gulf  Coast, 
etc.,  Co.  V.  Bowers,  80  Miss.  570 
(1902). 

New  Jersey.  Allman  v.  United 
Brotherhood,  79  N,  J.  E.  641 
(1913),  aff.  79  N.  J.  E.  150  (1911); 
R.  Co.  V.  Kelley,  77  N.  J.  E.  129 
(1910);  Rogers,  etc.,  Works  v.  Erie 
R.  Co.,  20  N.  J.  E.  379   (1869). 

Pennsylvania.  Whiteman  v. 
Fayette  Fuel  Gas  Co.,  139  Pa.  St. 
492   (1891). 

West  Virginia.  Coal,  etc.,  Co.  v. 
Ritz,  60  W.  Va.  395   (1907). 

United  States.  King  Lumber 
Co.  V.  Benton,  186  Fed.  458,  108 
C.  C.  A.  436  (1911);  Am.  Lead 
Pencil  Co.  v.  Schneegass,  178  Fed. 
735    (C.   C.    1910). 


INJUNCTIONS  731 

interlocutory  and  provisional  remedy  granted  before  final 
hearing  on  the  merits  to  prevent  some  immediately 
threatening  injury.  A  permanent  injunction  is  a  per- 
petual injunction  rendered  after  final  hearing  on  the 
merits.  Preliminary  and  permanent  injunctions  will  be 
discussed  in  detail  further  on.^* 

§  453.  When  granted.  In  general  it  may  be  said  that 
an  injunction  may  be  granted  in  any  case  where  justice 
requires  it,  when  there  is  no  adequate  remedy  at  law; 
but  this  general  principle  is  qualified  by  many  other 
principles.  Injunctions  are  applicable,  therefore,  in  an 
infinite  variety  of  cases,  both  under  the  rules  of  general 
equity  jurisprudence  and  by  virtue  of  special  statutes. 
It  is  beyond  the  scope  of  this  work  to  classify  in  detail 
these  principles  and  cases,  although  special  mention  may 
appropriately  be  made  of  certain  classes  of  cases  where 
injunctions  will  not  be  granted. 

In  the  first  place,  it  is  a  well  established  general  rule 
that  equity  deals  only  with  property  rights,  and  will 
not  grant  injunctions  to  restrain  criminal  acts  as  such;  ^ 

In  Toledo  A.  A.  &  N.  M.  E.  Co.  2a,  See  Sees.  453,  472,  post. 

V.  Pa.  Co.,  54  Ted.  730,  741  (1893),  3.  Alabama.     Bessemer  v.  Besse- 

Judge    Taft,    speaking    of    prelim-  mer    Water    Works,    152    Ala.    391 

inary  mandatory  injunctions,  says:  (1907). 

"The    office   of    a   preliminary   in-  Illinois.     Cope  v.  Flore  District 

junction    is   to    preserve    the    status  Fair      Association,      99      111.      489 

quo    until    upon    final    hearing    the  (1881). 

court  may  grant  full  relief.     Gen-  Massachusetts.      Worthington   v. 

erally  this  can  be  accomplished  by  Waring,   157   Mass.   421    (1892). 

injunction,     prohibitory     in     form,  Michigan.      Osborne     v.     Charle- 

but  it  sometimes  happens  that  the  voix  Circuit  Judge,  114  Mich.  655 

status    quo    is  a    condition    not    of  (1897). 

rest  but  of  action,  and  the  condi-  New  Jersey.     Green  v.  Piper,  80 

tion   of   rest  is   exactly   what   will  N.   J.  E.  288    (1913);   McMillan   v. 

inflict  the  irreparable  injury  upon  Kuehnle,   78  N.  J.  E.  251,  rev.  76 

complainant  which  he  appeals  to  a  N.  J.  E.  256  (1909-10);  Ocean  City 

court    of    equity    to    protect    him  Assn.  v.  Schurch,  57  N.  J.  E.  268 

from.      In    such    a    case    courts    of  (1898). 

equity    issue   mandatory   writs   be-  West     Virginia.       Flaherty      v. 

fore  the  case  is  heard  on  its  mer-  Fleming,  58   W.   Va.  669    (1906). 

its."  United   States.      Moss    &   Co.    v. 


732 


EQUITY  PRACTICE 


but  a  contimiing  injury  to  property  or  business  may  be 
enjoined  although  it  may  also  be  punishable  as  a  crime.^ 
Again  injunctions  will  generally  not  be  granted  to  enjoin 
nuisances,  waste,  trespasses  and  the  like,  where  plain- 
titT's  title  is  disputed,  until  he  has  previously  established 
his  title  in  an  action  at  law,^  except  where  the  right  in 


McCantray,  191  Fed.  202  (C.  C. 
1911). 

4.  Alabama.  Mobile  v.  Louis- 
ville, etc.,  R.  Co.,  84  Ala.  115,  5 
Am.  .St.  Rep.  342    (1SS7). 

Illinois.  Barrett  v.  Greenwood 
Cemetery  Association,  159  111.  385, 
50  Am.  St.  Rep.  16S,  31  L.  R.  A. 
109   (1S96). 

Maryland.  Hamilton  v.  Whit- 
ridge,  11  Md.  128,  69  Am.  Dec.  184 
(1857). 

Michigan.  Beck  v.  R.  Teams- 
ters' Protective  Union,  118  Mich. 
497,  74  Am.  St.  Rep.  421,  42  L.  R. 
A.  407   (1S98). 

Mississippi.  Floyd  v.  Addler,  96 
Miss.   544    (,1910). 

New  Jersey.  Cumberland  Glass 
Mfg.  Co.  V.  Glass  Bottle  Blowers, 
etc.,  59  X.  J.  E.  49   (1899). 

Pennsylvania.  Kline  v.  Living- 
ston Club,  177  Pa.  224,  55  Am.  St. 
Rep.  717,  34  L.  R.  A.  94  (1896). 

West  Virginia.  State  v.  Ehrlich, 
65   W.   Va.   700    (1909). 

United  States.  Ee  Debs,  158  U. 
S.  564,  39  L.  ed.  1092  (1884);  Long 
V.  So.  Exp.  Co.,  201  Fed.  441  (D.  C. 
1913);  Allis-Chalmers  Co.  v.  Relia- 
ble Lodge,  111  Fed.  264  (C.  C. 
1901). 

In  Vegelahn  v.  Guntner.  167  Mass. 
92  (1894),  it  was  held  that  maintain- 
ing a  patrol  of  two  men  changed 
every  hour  in  front  of  a  person 's 
premises  as  part  of  a  conspiracy  to 
interfere  with  his  business  until  he 
shall   adopt   a   certain   schedule  of 


prices,  in  combination  with  per- 
suasion, social  pressure,  and 
threats  of  personal  injury  or  un- 
lawful harm  conveyed  to  persons 
employed  by  him  or  seeking  such 
employment,  amounts  to  intimida- 
tion, and  constitutes  a  private 
nuisance  which  equity  will  restrain 
by  injunction;  and  such  injunc- 
tion will  issue,  although  the  acts 
enjoined  may  be  criminal,  and  are 
designed  only  to  affect  persons  who 
are  not  bound  by  contract  to  enter 
into  or  to  continue  in  the  employ- 
ment. The  court  said:  "It  is 
true  that  ordinarily  a  court  of 
equity  will  decline  to  issue  an  in- 
junction to  restrain  the  commis- 
sion of  a  crime;  but  a  continuing 
injury  to  property  or  business  may 
be  enjoined,  although  it  may  also 
be  punishable  as  a  nuisance  or 
other  crime."' 

5.  Alabama.  English  v.  Prog- 
ress  Co.,  95   Ala.  259   (1891). 

Illinois.  Nelson  v.  Milligan,  151 
111.   462    (1894). 

Maine.  Tracy  v.  LeBlanc,  89 
Me.   309    (1896)." 

Massachusetts.  Dana  v.  Valen- 
tine. 5  Met.  8  (1847). 

Michigan.  Ronayne  v.  Loran- 
ger.  66  Mich.  373   (1887). 

Mississippi.  Gwin  v.  Melmoth, 
Freem.  Ch.  505  (1844). 

New  Hampshire.  Perkins  v. 
Foye.  60   X.   H.  496   (1881). 

New  Jersey.  Todd  v.  Staats,  60 
X.    J.    E.    507    (1900);    Stevens    v. 


INJUNCTIONS 


733 


(Question  has  long  been  enjoyed  without  interruption, 
or  in  case  of  imperious  necessity  where  an  immediate 
and  irreparable  injury  is  threatened,  or  in  particular 
cases  where  the  remedy  in  equity  would  be  more  adequate 
and  complete,  as  for  instance,  where  it  is  invoked  to  pre- 
vent a  multiplicity  of  suits.^  Further  it  is  well  estab- 
lished that  an  injunction  to  restrain  a  threatened  public 
injury  cannot  be  obtained  by  a  citizen,  where  the  injuries 
which  he  fears  are  of  the  game  kind  as  those  which  will 
be  sustained  by  the  people  at  large.  This  can  only  be 
done  by  information  filed  by  the  attorney  general^ 

Another  well  established  rule  is  that  courts  of  equitj^ 
cannot  by  injunction  control  the  discretion  of  public 
officers  in  the  performance  of  their  official  duties.®    Again 


Patterson  Co.,  20  N.  J.  Eq.  126 
(1869). 

Pennsylvania.  Wood  v.  Mc- 
Grath,  150  Pa.  451    (1892). 

West  Virginia.  Kanawha,  etc., 
E.  Co.  V.  Glen  Jean,  etc.,  Co.,  45 
W.  Va.  119  (1898);  Powell  v.  Bent- 
ley  Co.,  34  W.  Va.  804   (1891). 

United  States.  Consolidated  Co. 
V.  Mesa  Co.,  177  U.  S.  296,  44  L.  ed. 
777    (1899). 

6.  Varney  v.  Pope,  60  Me.  192 
(1872);  Lockwood  Co.  v.  Lawrence, 
77  Me.  297  (1885);  Eobertson  v. 
Meyer,  59  N.  J.  E. '366  (1900); 
Richmond  v.  Bennett,  205  Pa.  470 
(1903). 

7.  Hoole  V.  Attorney  General,  22 
Ala.  190  (1853);  Smith  v.  McDow- 
ell, 148  111.  51  (1893);  Souther- 
land  V.  Jackson,  30  Me.  462 
(1849);  Attorney  General  v.  Tarr, 
148  Mass.  309  (1888);  Common- 
wealth V.  Stevens,  178  Pa.  543 
(1897). 

8.  Illinois.  People  v.  Rose,  211 
Hi.  252  (1904);  Bodman  v.  Drain- 
age Commrs.,  132  111.  439  (1890). 


Maryland.  Henkle  v.  Millard, 
97   Md.   24    (1903). 

Massachusetts.  Larcom  v.  Olin, 
160  Mass.  102   (1893). 

New  Jersey.  Green  v.  Piper,  80 
N.  J.  E.  288   (1913). 

West  Virginia.  Bd.  of  Educ.  v. 
Holt,  51  W.  Va.  435   (1902). 

United  States.  Maese  v.  Her- 
man, 17  App.  D.  C.  52,  aff.  183 
U.  S.  572,  46  L.  ed.  335  (1902); 
New  Orleans  v.  Paine,  147  U.  S. 
261,  37  L.  ed.  162  (1892). 

In  Larcom  v.  Olin,  160  Mass. 
110  (1893),  the  court  said:  "It  is 
not  within  the  general  powers  of  a 
court  of  equity  to  supervise  the 
conduct  of  public  officers  in  the 
performance  of  their  official  du- 
ties, or  to  prohibit  such  officers 
from  acting  or  to  compel  them  to 
act  in  matters  which  concern  po- 
litical and  personal  rights  as  dis- 
tinguished from  rights  of  prop- 
erty. ' ' 

In  Board  of  Liquidation  v.  Mc- 
Comb,  92  U.  S.  531,  23  L.  ed.  623 
(1875),  the  court  said:    "But  it  has 


734 


EQUITY  PRACTICE 


the  state  courts  have  no  jurisdiction  to  restrain  infringe- 
ments of  patents,^  although  they  may  enjoin  the  infringe- 
ment of  trade  marks. ^°  It  should  also  be  borne  in  mind 
that  an  injunction  -vrill  not  be  ordered  against  any  person 
who  is  not  a  party  defendant,"  and  will  never  be  granted 
where  it  will  prejudice  the  rights  of  absent  persons.  In 
short,  it  may  be  said  that  the  writ  of  injunction  is  an 
extraordinary  remedy  only  to  be  granted  with  the  utmost 
caution  when  justice  urgently  demands  it  and  the  reme- 
dies at  law  fail  to  meet  the  requirements  of  the  case.^^ 
§  454.  Granting  of  injunctions  discretionary.  The 
issuance  of  a  preliminary  injunction  which  restrains  the 
action  of  the  defendant  before  a  full  hearing  on  the 
merits  rests  within  the  discretion  of  the  chancellor  or 


been  well  settled  that  when  a  plain 
oflScial  duty,  requiring  no  exercise 
of  discretion,  is  to  be  performed, 
and  performance  is  refused,  any 
person  who  will  sustain  personal  in- 
jury by  such  refusal  may  have  a 
mandamus  to  compel  its  perform- 
ance; and  when  such  duty  is  threat- 
ened to  be  violated  by  some  posi- 
tive official  act,  any  person  who  will 
sustain  personal  injury  thereby, 
for  which  adequate  compensation 
cannot  be  had  at  law,  may  have 
an  injunction  to  prevent  it.  In 
such  cases  the  writs  of  mandamus 
and  injunction  are  somewhat  cor- 
relative to  each  other." 

An  injunction  may  issue  to  re- 
strain a  public  officer  from  enforc- 
ing a  void  statute.  Coal,  etc.,  Co. 
v.  Conley,  67  W.  Va.  129  (1910). 
Or  illegal  restriction.  Wong  Wai 
V.  Williamson,  103  Fed.  1  (C.  C. 
1900).  Or  to  enjoin  an  officer  from 
acting  beyond  his  powers.  Dela- 
ware Surety  Co.  v.  Layton,  50  Atl. 
378  (Del.  Ch.  1901).  Injunction 
may  be  allowed  against  the  hold- 


ing of  an  illegal  election.     Conner 
V.  Gray,  88  Miss.  489   (1906). 

9.  This  is  because  the  Federal 
statutes  give  the  Federal  courts 
exclusive  jurisdiction  over  patent 
infringement  causes.  E.  S.  (1878), 
Sec.  711;  Kelly  v.  Kelly  Mfg.  Co., 
15  111.  App.  547  (1884);  Parkhurst 
V.  Kinsman,  6  N.  J.  E.  600  (1847); 
Cochrane  v.  Deener,  94  U.  S.  780, 

24  L.  ed.  139   (1876). 

10.  Maine,  R.  S.,  Chap.  40,  Sec. 
21;  U.  S.  V.  Steffens,  100  U.  S.  82, 

25  L.  ed.  550  (1879). 

11.  See  Sec.  473,  this  chapter, 
post,  p.  771. 

12.  See  for  example  Godwin  v. 
Phifer,  51  Fla.  441  (1906);  Morse 
V.  Machias  Water  Power  Co.,  42 
Me.  119  (1856),  where  the  court 
said:  "The  process  of  injunction 
should  be  applied  with  the  utmost 
caution. ' '  In  the  language  of 
Chancellor  Kent,  in  Attorney  Gen- 
eral V.  Utica  Insurance  Co.,  2 
Johns.  (N.  Y.)  Ch.  378  (1817):  "It 
is  the  strong  arm  of  the  court,  and 
to  render  its  operation  benign  and 


INJUNCTIONS 


735 


single  justice.^^  The  practice  varies  in  the  different 
states  as  to  whether  the  discretion  of  the  judge  or  chan- 
cellor in  granting  or  refusing  a  preliminary  injunction 
may  be  reviewed  by  the  appellate  court,^*  but  it  is  the 
general  rule  of  chancery  procedure  that  such  discretion 
does  not  mean  an  arbitrary  and  capricious  choice,  but  a 
judicial  discretion  guided  by  precedent  and  the  rules  of 
practice,  considering  all  the  circumstances  of  the  case, 
balancing  the  inconveniences  of  each  party  and  seeking 
exact  justice  to  alL^^ 

In  the  case  of  a  permanent  injunction,  however,  whicli 
is  not  granted  till  after  the  cause  has  been  fully  tried, 
the  discretion  of  the  court  is  much  more  limited,  and 
there  are  even  cases  holding  that  after  final  hearing  an 


useful,  it  must  be  exercised  with 
the  greatest  discretion  and  when 
necessity  requires  it." 

13.  Florida.  Suwannee,  etc.,  R. 
Co.  V.  West  Coast  R.  Co.,  50  Fla. 
609,  612   (1905). 

Maine.  Morse  v.  Machias  Water 
Power  Co.,  42  Me.  119,  127  (1856). 

Massachusetts.  Carleton  v. 
Rugg,   149   Mass.  550    (1889). 

Michigan.  Wyoming  Tp.  v. 
Stewart,  158  Mich.  60   (1909). 

Vermont.  Griffith  v.  Hilliard,  64 
Vt.   643    (1890). 

United  States.  Clark  v.  Woos- 
ter,  119  U.  S.  322,  30  L.  ed.  392 
(1886);  Sanitary,  etc.,  Works  v. 
Calif.  Redn.  Co.,  94  Ted.  693 
(1899);  Nashville,  etc.,  R.  Co.  v. 
McConnell,   82   Fed.   65    (1897). 

14.  See  Chapter  XXVIII,  "Ap- 
peals," Sec.  511,  post,  p.  850. 

And  see: 

Alabama.  Code,  Sees.  2839, 
4531;  English  v.  EI.  Light  Co.,  95 
Ala.  259  (1891). 

Maryland.  Code,  Art.  16,  Sec. 
191;  Steigerwald  v.  Winans,  17 
Md.    62    (1860). 


Pennsylvania.  Crawford  v.  Sul- 
livan, 238  Pa.  142   (1913). 

Rhode  Island.  G.  L.,  Ch.  289, 
Sec.  34. 

Virginia.  Jenkins  v.  Waller,  80 
Va.   668    (1885). 

West  Virginia.  Robrect  v.  R. 
Co.,  46  W.  Va.  738  (1899). 

United  States.  Clark  v.  Wooster, 
119  U.  S.  322,  30  L.  ed.  392 
(1886);  Rahley  v.  Columbia,  etc., 
Co.,  122  Fed.  623,  58  C.  C.  A.  639 
(1903);  Ritter  v.  Ullman,  78  Fed. 
222    (1897). 

15.  Massachusetts.  Carleton  v. 
Rugg,   149  Mass.  550    (1889). 

Mississippi.      Code,    Sec.   608. 

New  Hampshire.  Eastman  v. 
Amoskeag  Mfg.  Co.,  47  N.  H.  71 
(1866). 

New  Jersey.  Marvel  v.  Jonah, 
81  N.  J.  E.  369  (1913);  Aldrich  v. 
Union,  etc.,  Co.,  81  N.  J.  E.  244 
(1913). 

United  States.  Cubbins  v.  Miss. 
R.  Commrs.,  204  Fed.  299  (1913); 
Love  V.  Atchison,  etc.,  R.  Co.,  185 
Fed.  321,  107  C.  C.  A.  403  (1909- 
11). 


736 


EQUITY  PRACTICE 


injunction  may  be  demanded  as  a  matter  of  right,^^  or 
in  other  words  that  the  court  in  such  cases  has  no  more 
discretion  than  in  granting  any  other  form  of  equitable 
relief. 

§  455.  The  injunction  bill.  An  injunction  can  only  be 
obtained  in  connection  with  a  bill  in  equity  previously 
filed. ^"  It  is  laid  down  as  a  general  rule  that  an  injunc- 
tion will  not  ordinarily  be  granted  unless  specially 
applied  for  in  the  prayer  for  relief  and  also  in  the  prayer 
of  process.^^  But  this  general  rule  must  be  confined  in 
strictness  to  preliminary  injunctions,  since  it  is  some- 
times provided  by  statute  that  injunctions  may  be  granted 
pending  the  suit,  in  proper  cases,  upon  motion  and  hear- 
ing, it  seems  without  a  special  prayer,^  ^  and  it  is  well 


16.  X.  Y.  Printing  Est.  v.  Fitch, 
1  Paige  (X.  Y.)  97  (1830).  See 
Sullivan  v.  Jones,  etc.,  Steel  Co., 
208  Pa.  540,  66  L.  R.  A.  712 
(190-4). 

17.  Delaware.       Eq.    Rule    61. 
Florida.      Gen.      Statutes,      See. 

1913, — except  in  the  special  cases 
and  for  the  special  causes  for 
which  such  writs  are  authorized  in 
the  courts  of  the  United  States. 

Maine.     Equity  Rule  6. 

Maryland.  Dixon  v.  Dixon,  119 
M.l.  413  (1913). 

Massachusetts.  Equity  Rule  2, 
— unless  for  good  cause  shown. 

New  Hampshire.  Equity  Rule 
108, — but  where  object  of  injunc- 
tion would  be  defeated  by  delay 
necessary  to  file  bill,  injunction 
may  issue  to  expire  unless  bill  filed 
within   specified   time. 

Rhode  Island.    Equity  Rule  32. 

Vermont.  Xo  injunction  shall 
issue  until  the  bill  is  filed  either 
by  the  clerk  or  the  chancellor,  or 
the  subpoena  thereto  is  signed. 
Bills  accompanied  by,  or  contain- 
ing a  temporary  injunction  or  other 


interlocutory  order  signed  by  a 
chancellor  shall  be  docketed  in  the 
clerk's  office  within  twenty-one 
days  from  the  date  of  such  order, 
or  if  not  docketed  within  that 
time,  at  the  time  of  filing  of  the 
injunction  bond,  if  one  is  required; 
and  if  not  so  docketed,  the  order 
shall  cease  to  be  operative.  Pub. 
Stat.  1906,  Chap.  65,  Sec.  1280, 
as  amended  by  Xo.  54  P.  Acts 
1908. 

But  in  Alabama  an  injunction 
is  not  invalidated  if  the  order  was 
made  before  bill  filed.  Code,  Sec. 
4527.  And  this  is  probably  in  ac- 
cordance with  general  chancery 
practice. 

A  petition  rather  than  a  bill  for 
an  injunction  is  sufficient,  where 
the  court  has  possession  of  the 
cause  and  jurisdiction  of  the  sub- 
ject matter.  Western,  etc.,  Organ 
Co.  V.  Burrows,  144  HI.  App.  350 
(1908). 

18.  See  Chapter  VI,  "Original 
Bills,"  notes  47,  48  and  70,  ante, 
pp.  220,  221,  and  230. 

19.  Me.   R.   S.,   Ch.    79,   Sec.    35, 


INJUNCTIONS 


737 


established  in  general  chancery  practice  that  the  court 
will  at  the  final  hearing  issue  a  perj)etual  injunction  upon 
final  decree,  where  it  is  necessary  for  the  purposes  of 
complete  justice,  although  it  has  not  been  prayed  for  by 
the  bill.2« 

All  bills  praying  for  injunction  must  be  verified  by 
oath  or  accompanied  by  affidavit.^^  But  where  on  a 
bill  not  praying  for  an  injunction,  it  becomes  neces- 
sary for  the  purposes  of  complete  justice  to  issue  an 
injunction  during  the  progress  of  the  cause  or  upon  final 

hearing,  this  may  be  done  although  such  bill  is  not 
verified.22 


after  providing  that  no  prelimi- 
nary injunction  shall  be  issued 
without  a  special  prayer,  reads 
"but  an  injunction  may  bs 
granted  pending  the  suit,  in  proper 
cases  upon  hearing  and  motion." 
This  must  unquestionably  mean 
without  a  special  prayer.  This 
provision  was  doubtless  intended 
to  cover  those  cases  where  the 
necessity  for  an  injunction  first 
appears  or  arises  during  the  prog- 
ress of  the  cause. 

20.  See  Chapter  VI,  "Original 
Bills,"  note  48,  ante,  p.  221. 

21.  See  Chap.  VI,  "Original 
Bills,"  Sec.  124,  ante,  p.  232. 

A  verification  merely  on  infor- 
mation and  belief  will  not  justify 
temporary  injunction  without 
hearing.  Allen  v.  Wayne  Circuit 
Judge,  159  Mich.  612  (1910);  Lake 
Shore,  etc.,  R.  Co.  v.  Felton,  10.3 
Fed.  227   (C.  C.  1900). 

22.  Shobe  v.  Luff,  66  111.  App. 
414  (1895);  Hawkins  v.  Hunt,  14 
111.  42  (1852).  According  to  these 
cases  injunctions  may  be  issued  in 
any  case  upon  final  hearing,  with- 
out verification,  since  the  facts 
will    then   have   been    fully    estab- 

Whitehouse  E.  P.  Vol.  1—47 


lished  upon  the  evidence  at  the 
hearing.  See  also  Harrington  v. 
Harrington,  15  R'.  L  341  (1886); 
Black  V.  Henry  G.  Allen  Co.,  42 
Fed.  618,  9  L.  R.  A.  433  (1890), 
which  held  that  it  is  not  necessary 
for  a  bill  to  be  verified  at  the 
time  it  is  signed  when  it  is  not 
to  be  used  as  evidence  on  a  mo- 
tion for  a  preliminary  injunction 
or  any  other  way.  But  an  injunc- 
tion could  not  be  granted  at  final 
hearing  upon  an  unverified  bill  in 
states  where  chancery  rules  ex- 
pressly provide  that  all  injunction 
bill  shall  be  verified.  But  where 
the  bill  is  not  one  praying  for  in- 
junction, the  rule  does  not  apply, 
and  injunctions  may  be  granted 
without  verification  in  any  case 
where  they  may  be  granted  with- 
out a  special  prayer  for  injunction. 
A  decree  granting  injunction 
without  filing  affidavits,  required 
by  chancery  rule,  is  erroneous, 
even  though  subsequent  order 
made  that  injunction  shall  not  is- 
sue until  plaintiff  has  filed  the 
proper  affidavits.  Juniata  Water 
&  Water  Power  Co.  v.  Wilson 
Electric    Co.,   226   Pa.   407    (1910). 


738 


EQUITY  PRACTICE 


As  to  the  essential  allegations  of  a  bill  seeking  an 
injunction,  it  may  be  said  that  the  bill  must  allege  facts 
which  clearly  show  that  the  plaintiff  will  suffer  a  sub- 
stantial ^^  and  irreparable  -^  injury.  A  mere  general 
averment  of  the  nature  of  the  injury  is  not  sufficient. 
The  facts  which  show  that  the  injured  party  cannot  be 
adequately  compensated  by  damages  or  that  damages 
cannot  be  measured  by  any  certain  pecuniary  standard  ^^ 
must  be  stated  in  detail,-*'  and  then,  although  it  is  not 


Objections  to  affidavits  filed 
with  a  motion  for  a  preliminary 
injunction  in  a  Federal  court, 
which  go  to  a  matter  of  form 
only,  should  be  made  in  advance 
of  the  hearing  on  the  motion 
where  there  is  ample  time  there- 
for. Modox  Co.  V.  Moxi  Photo 
Co.,  162  Fed.  649   a907). 

23.  Spencer  v.  London  R.  Co.,  8 
Sim.  (Eng.  Ch.)  103;  Stanford  v. 
Lyon,  37  N.  J.  Eq.  94  (1883);  Sar- 
geant  v.  George,  56  Vt.  627  (1884). 

24.  Washburn  v.  Miller,  117 
Mass.  376  (1875);  Kenney  v.  Gas 
Co.,  142  Mass.  417  (1886);  Burn- 
ham  V.  Kempton,  44  N.  H.  78 
(1862);  West  Jersey  R.  Co.  v.  R. 
Co.,  34  N.  J.  Eq.  164  (1881);  Dows 
V.  Chicago,  11  Wall.  (U.  S.)  110, 
20  L.  od.  65  (1870). 

25.  Florida.  Brown  v.  Chatauqua 
Association,  59  Fla.  447  (1910); 
Cowen  v.  Skinner,  52  Fla.  486 
(1906). 

Illinois.  Poyer  v.  Des  Plaines, 
123  Til.  Ill    (1887). 

Maine.  Haskell  v.  Thurston, 
80  Mo.  129  (1888). 

Maryland.  Gas,  etc.,  Co.  v.  R. 
Co.,  107  Md.  671  (1908). 

New  Jersey.  Hamilton  v.  Ely,  4 
Gill.  34  (1846). 

New  Hampshire.  Boston,  etc., 
R.  Co.  V.  Portsmouth,  etc.,  R.  Co., 


57  N.  H.  200  (1876);  Eastman  v. 
Amoskeag  Mfg.  Co.,  47  N.  H.  71 
(1866). 

New  Jersey.  Mullen  v.  Jen- 
nings, 9  N.  J.  Eq.  192   (1852). 

Vermont.  Clark  v.  Peek,  79  Vt. 
275    (1906). 

Virginia.  Bledsoe  v.  Robinett, 
105   Va.   723    (1906). 

West  Virginia.  Cresap  v.  Kem- 
ble,   26   W.   Va.   603    (1885). 

United  States.  Watson  v.  Suth- 
erland, 5  Wall.  78,  18  L.  ed.  580 
(1866). 

26.  Florida.  Godwin  v.  Phifer, 
51   Fla.   441    (1906). 

Illinois.  Barnes  v.  Typograph- 
ical  Union,  232  111.  424   (1908). 

Maine.  Westbrook  Mfg.  Co.  v. 
Warren,   77    Me.   437    (1885). 

Maryland.  Moffat  v.  Calvert 
County  Commissioners,  97  Md.  266 
(1903). 

Massachusetts.  Giles  v.  Dunbar, 
181   Mass.   22    (1906). 

New  Hampshire.  Coe  v.  Win. 
Mfg.  Co.,  37  N.  H.  254   (1858). 

New  Jersey.  Shreve  v.  Voor- 
hees,  3  N.  J.  Eq.  25;  Heckscher  v. 
Trotter,  41  N.  J.  Eq.  501  (1886). 

Bhode  Island.  Melaugh  v.  Burke, 
12  R.  I.  499  (1880). 

Tennessee.  Plowman  v.  Satter- 
waite,   3  Tenn.  Ch.    (1875). 

Virginia.     South  &  W.  R.  Co.  v. 


INJUNCTIONS 


739 


necessary  ^^  to  do  so,  it  is  well  to  state  the  general  con- 
clusions in  express  terms.-^  In  regard  to  the  frame  of  an 
injunction  bill  in  other  respects  and  the  joinder  of  par- 
ties thereto,  the  general  rules  are  the  same  as  those  laid 
down  above  for  all  bills. 

§  456.  Preliminary  injunctions— In  general.  Prelim- 
inary injunctions  may  be  ex  parte  or  after  a  hearing, 
and  may  be  granted  either  with  or  without  bond,  the 
practice  varying,  as  we  shall  see,  in  different  jurisdic- 
tions and  according  to  the  circumstances  of  different 
cases.  It  is  generally  true,  however,  that  the  injunction 
is  not  obtained  by  force  of  the  bill  and  special  prayer 
alone,  but  a  motion  2»  must  also  be  made  asking  that 
injunction  may  issue.  The  motion  should  state  by  which 
of  the  several  methods  possible  it  is  sought  to  obtain 
the  injunction;  and  it  is  sometimes  required  that  in  the 
bill  or  motion,  it  should  appear  that  no  previous  applica- 
tion has  been  made.^*' 

§  457.  Preliminary  injunctions  on  hearing.  The  usual 
method  of  granting  preliminary  injunctions  is  upon  no- 


Va.  &  S.  W.  E.   Co.,   104  Va.   323 
(1905). 

27.  Lamm  v.  Burrell,  69  Md.  272 
(18S8). 

28.  See  Chap.  VI,  "Original 
Bills,"  Sees.  97,  99,  ante,  pp.  185, 
191  et  seq. 

In  Tennessee  the  bill  must  state 
expressly  that  this  is  the  first  ap- 
plication for  injunction  in  the 
matter.     Code  Sec.  6247. 

29.  The  usual  practice  where  the 
bill  prays  for  an  injunction  is  to 
bring  the  matter  to  the  attention 
of  a  justice  in  chambers  by  in- 
formal oral  motion  simply  asking 
that  injunction  maj'  issue  as  pro- 
vided for  in  the  bill.  This  is  ex- 
pressly so  provided  by  Ehode 
Island  General  Statutes,  Ch.  289, 
Sec.  4. 


In  Illinois,  such  a  motion  may 
be  made  and  injunction  issued  on 
a  Sunday.  Kurd's  Stat.,  Ch.  69, 
Sec.  23,  J.  &  A.  116183.  But  it  is 
for  the  judge  to  pass  on  the  neces- 
sity of  an  application  on  that  day. 
People  V.  McWeeny,  259  111.  161 
(1913). 

30.  Tennessee    Code,    Sec.    6247. 

It  is  generally  true  that  when 
an  application  for  an  injunction 
has  been  refused,  no  other  judge 
of  co-ordinate  jurisdiction  may 
grant  it. 

Alabama  Code,  Sees.  4518  to 
4521;  Maine,  Equity  Rule  37;  New 
Jersey,  Equity  Rule  129;  Tennes- 
see  Code,  Sec.   6253. 


740 


EQUITY  PRACTICE 


tice  and  hearing.^^  Upon  making  the  motion  seeking  an 
injunction  upon  notice  and  hearing,  the  court  will  as  a 
matter  of  course  at  once  order  a  summons  to  show  cause 
to  issue,  a  form  for  which  is  frequently  prescribed  by 
the  chancery  rules,  ordering  the  defendant  to  appear  on 
a  day  named,  which  is  fixed  by  the  court  within  a  rea- 
sonable time  under  the  circumstances  of  the  case,^^  and 
show  cause  why  an  injunction  should  not  be  granted  as 
prayed  for  in  the  plaintiff's  bill.  This  summons  should 
be  served  in  hand  upon  the  defendant  by  a  proper  officer, 
and  at  the  same  time  service  of  the  main  process  on  the 
bill  should  be  made  ^^  by  copy  of  bill  and  subpoena  or 


31.  Alabama.     Code,  Sec.  4528. 
Florida.      Eq.    Rule    46. 
Illinois.      Hurd's    St.,    Chap.    69, 

Sec.  ;},  J.  &  A.  116163;  Gonyo  v. 
Wilmette,  133  III.  App.  645  (1907). 

Maryland.  Barnum  v.  Gordon, 
28  Md.  85   (1867). 

Massachusetts.  Acts  of  1913, 
Chaps.   515,  840. 

Michigan.     Eq.  Rule  21. 

Pennsylvania.  Eq.  Rule  81;  Cas- 
sidy  V.  Knapp,  167  Pa.  305  (1895). 

Rhode  Island.  Eq.  Rule  32. 
But  the  hearing  may  proceed  ex 
parte  if  after  notice  the  '  other 
party  fails  to  appear.     Ibid. 

Vermont.  No  injunction  with- 
out notice  except  when  it  appears 
from  specific  facts  in  affidavit  or 
in  a  verified  bill  that  irreparable 
damage  will  otherwise  result.  Eq. 
Rule  40  (as  amended,  1913). 

Virginia.  The,  judge  may  re- 
quire notice  and  hearing  if  in  his 
opinion  such  notice  is  proper. 
Code,   See.   3440. 

United  States.     Eq.  Rule  73. 

32.  Statutes  or  chancery  rules 
sometimes  provide  for  the  length 
of  notice  to  be  given. 

Alabama.     Hearing  to  be  within 


ten  days,  on  three  days'  notice. 
Code,   Sec.   4528. 

Maine.  The  court  may  prescribe 
the  notice.    R.  S.,  Chap.  79,  Sec.  35. 

New  Jersey.  Service  of  notice 
to  be  at  least  six  days  before  the 
hearing.     Eq.  Rule  122. 

Pennsylvania.  Hearing  to  take 
place  at  expiration  of  five  days 
from  issuance  of  ex  parte  injunc- 
tion or  at  such  other  time  as  court 
may  direct.     Eq.  Rule  81. 

West  Virginia.  See  Kalbitzer 
V.  Goodhue,  52  W.  Va.  435   (1901). 

33.  Upon  issuance  of  a  prelimi- 
nary injunction,  a  subpoena  must 
be  taken  out  and  served,  and  de- 
fendant is  not  obliged  to  answer 
unless  the  service  of  the  subpoena 
is  made  upon  him,  but  on  an  or- 
der to  show  cause,  no  subpoena  is 
necessary  as  the  order  is  suffi- 
cient to  compel  defendant  to  ap- 
pear and  combat  the  issuance  of 
the  preliminary  injunction  by  the 
filing  of  affidavits,  or  by  answer  if 
he  so  desires.  If  on  the  return  of 
the  order  to  show  cause  it  is  made 
absolute,  and  preliminary  injunc- 
tion issued,  then  a  subpoena  must 
go  with  the  injunction,  unless,  of 


INJUNCTIONS 


741 


otherwise  as  tlie  case  may  be,  in  order  that  the  defendant 
may  have  seasonable  notice  of  the  case  which  he  has  to 
meet  at  the  hearing  upon  the  summons  to  show  cause 
why  injunction  should  not  issue.^^  In  some  jurisdictions 
there  are  rules  or  decisions  in  regard  to  the  proceedings 
at  the  hearing;  ^^  in  others  the  hearing  proceeds  in  the 


course,  defendant  has  already  an- 
swered. If  not  issued  and  re- 
turned within  the  time  required 
for  the  return  of  the  injunction, 
the  injunction  would  be  dissolved 
on  defendant 's  motion,  and  if  de- 
fendant desires  to  appear  spe- 
cially for  the  purpose  of  making 
this  motion  to  dissolve  only  and 
not  to  have  his  appearance  operate 
to  clothe  the  court  with  jurisdic- 
tion over  him  generally  in  tha 
suit,  he  should  obtain  leave  of 
court  to  enter  such  an  appearance. 
Allman  v.  United  Brotherhood  of 
Carpenters,  79  N.  J.  Eq.  150 
(1911),  afle.  79  N.  J.  E.  641  (1913). 

34.  Irregularity  in  issuance  of 
temporary  injunction  in  that  no 
notice  of  intention  to  move  for 
such  relief  was  given  to  defendant 
is  waived  by  motion  to  dismiss. 
Williams  v.  Chicago  Exhibition 
Co.,  188  111.  19  (1900);  Grand 
Opera  House  v.  Ripley,  166  111. 
App.   170    (1911). 

35.  Alabama.  At  the  hearing 
the  bill  and  answer,  as  also  affi- 
davits of  the  parties  or  witnesses, 
are  admissible.  Code,  Sec.  4529. 
The  bill  cannot  be  aided  by  pre- 
sumptions that  amendable  defects 
have  been  cured.  McHan  v.  M«- 
Murray,   173   Ala.    182    (1911). 

Delaware.  The  plaintiff  may  in- 
troduce affidavits.  Tatem  v.  Gil- 
pin,  1   Del.   Ch.   13    (1816). 

Florida.  The  defendant 's  sworn 
answer  may  be  used  at   the   hear- 


ing. Sullivan  v.  Moreno,  19  Fla. 
200    (1882). 

Illinois.  Affidavits  in  behalf  of 
the  defendant  may  be  considered, 
although  no  pleadings  in  defense 
have  been  filed.  Collins  v.  Weig- 
selbaum,  126  111.  App.  158   (1906). 

Maine.  Oral  evidence,  deposi- 
tions or  affidavits  are  admissible. 
R.  S.,  Chap.  79,  Sec.  35. 

Maryland.  The  defendant  'a 
sworn  answer  is  admissible  at  the 
hearing.  Riggs  v.  Winterode,  100 
Md.  439  (1905);  Blundon  v.  Cro- 
sier, 93   Md.  355    (1901). 

Michigan.  Affidavits  may  be 
filed  for  one  defendant  in  support 
of  the  answer  of  another.  Hart  v. 
Baxter,   47   Mich.    108    (1881). 

New  Jersey.  At  the  hearing  the 
defendant  may  read  his  answer 
and  also  affidavits,  or  affidavits 
alone,  and  the  plaintiff  may  read 
the  bill  and  accompanying  affida- 
vits. No  other  affidavits  than 
those  just  mentioned  shall  be  pre- 
sented unless  the  chancellor  or 
vice  chancellor  otherwise  directs. 
Eq.  Rule  122.  Evidence  offered  at 
the  hearing  must  be  legal  evi- 
dence. Thompson  v.  Ocean,  etc., 
R.  Co.,  37  Atl.  129  (N.  J.  Eq. 
1897).  Failure  to  deny  the  truth 
of  bill  and  affidavits  after  service 
of  the  same  is  equivalent  to  an 
admission  of  their  truth  at  the 
hearing  on  preliminary  injunction. 
Rider  v.  Clarkson,  77  N.  J.  E.  469 
(1910). 


742  EQUITY  PRACTICE 

same  manner  as  any  other  interlocutory  hearinji:."''' 
§  458.  Preliminary  injunctions  ex  parte — Restraining 
orders.  An  injunction  issuing  wtihout  notice  and  hear- 
ing is  properly  called  an  injunction  ex  'parte  when  it  does 
not  contemplate  by  its  terms  a  hearing  on  the  question  of 
its  continuance  but  is  to  remain  effective  until  modified 
on  later  application  to  the  court  or  until  final  decree; 
and  is  properly  called  a  restraining"  order  when  by  its 
terms  it  is  to  be  effective  until  a  specified  date  set  for 
a  hearing.^"  The  two  phrases  are  often  used  for  each 
other,  however,  and  it  is  not  always  possible  to  determine 
from  the  phraseology  to  wliich  class  the  injunction  or 
order  belongs.  Both  injunctions  ex  parte  and  restrain- 
ing orders  are  exceptional  in  equity  practice. 

In  most  jurisdictions,  the  plaintiff  before  he  can  obtain 
either  an  injunction  ex  parte  or  a  restraining  order  must 
satisfy  the  court  that  it  is  necessary  for  his  protection 
that  there  should  be  no  delay  in  serving  notice  on  the  de- 
fendant of  a  hearing;  for  instance,  upon  proof  by  affi- 
davits that  immediate  and  irreparable  injury  is  threat- 
Pennsylvania.  No  ex  parte  affi-  for  an  injunction,  but  the  question 
davits  shall  be  read  at  the  hear-  should  be  reserved  until  final 
ing,  but  all  evidence  shall  be  sub-  hearing  on  the  merits, 
ject    to    cross    examination,    being  Although  the  case  will  not  ordi- 

either  oral  or  depositions  taken  on  narily  be  disposed  of  on  the  merits 
notice  or  short  rule.  Eq.  Rule  81.  at  the  hearing,  Smith  v.  Nelson, 
36.  On  an  application  for  a  pre-  165  Mich.  438  (1911),  this  may 
liminary  injunction,  the  rules  of  be  done.  Jackson  Co.  v,  Gardiner 
evidence  are  applied  less  strictly  Investment  Co.,  200  Fed.  113,  118 
than  in  a  final  hearing  of  the  C.  C.  A.  287  (1913).  See  Kelly  v. 
cause.  My  Maryland  Lodge  v.  Baltimore,  53  Md.  134  (1879); 
Adt,  100  Md.  238,  68  L.  R.  A.  752  Alford  v.  Moore,  15  W.  Va.  597 
(1905);  Casey  v.  Cincinnati  Typog.       (1879). 

Union,  45  Fed.  135,  12  L.  R.  A.  193  Injunction    will    usually    be    ro- 

(1891);  Buck  V.  Ilermance,  F.  C.  fused  if  the  answer  overcomes  the 
2081,  1  Blatchf.  322  (1848).  bill.      Woodside    v.    Tonopah,    etc., 

It  was  held  in  Deering  v.  R.  R.      R.  Co.,  184  Fed.  358   (C.  C.  1911). 
Co.,  31  Me.  172  (1850),  that  an  act  37.  This    distinction    is    pointed 

of  the  legislature  ought  not  to  be  out  in  Allman  v.  United  Brother- 
declared  unconstitutional  on  a  mere  hood,  79  N.  J.  E.  641  (1913),  aflf. 
preliminary    hearing    on    a    motion      79  N.  J.  E.   150   (1911). 


INJUNCTIONS 


743 


ened.^^  In  many  jurisdictions  tlie  plaintiff  must  also  file 
a  bond  of  indemnity,  if  practicable.-^^  The  rules  fre- 
quently require  that  a  hearing  on  the  question  of  continu- 
ing the  order  in  effect  must  take  place  within  a  certain 
time  after  the  ex  parte  order  is  given. ^° 


38.  Alabama.  Injunctions  ex 
parte  may  be  issued  where  there 
would  be  substantial  injury  by 
delay.     Code,  Sec.  4528. 

Delaware.  Davis  v.  Browne,  2 
Del.  Ch.   188   (1859). 

Florida.  Equity  Eule  46.  The 
court  is  averse  to  granting  such  in- 
junctions, and  will  examine  the 
allegations  of  bill  and  aflfidavits 
critically.  Gillespie  v.  Chapline, 
59  Fla.  500  (1910);  Builders'  Sup- 
ply Co.  v.  Acton,  56  Fla.  756 
(1908);  Godwin  v.  Phifer,  51  Fla. 
441  (1906);  Richardson  v.  Kittle- 
well,  45  Fla.  551   (1903). 

Illinois.  J.  &  A.  116163,  Kurd's 
Stat.,  Chap.  69,  Sec.  3.  As  to  the 
care  with  which  the  court  will  ex- 
amine bill  and  affidavits  before 
granting  such  injunction,  see  Wal- 
lach  V.  Billings,  161  111.  App.  317 
(1912);  Rieder  v.  White,  160  111. 
App.  576  (1912);  Williams  v.  Chi- 
cago Ex.  Co.,  188  111.  19  (1900); 
Itasca  V.  Schroeder,  182  111.  192 
(1899). 

Maryland.  Thompson,  etc.,  R. 
Co.  V.   Young,   90  Md.   278    (1899). 

Massachusetts.  Acts  of  1913, 
Chaps.   515,  840. 

Michigan.  Eq.  Rule  21.  See 
Manastique,  etc.,  Co.  v.  Lovejoy, 
.55  Mich.  189  (1884);  Toledo,  etc., 
R.  Co.  v.  Detroit,  etc.,  R.  Co.,  61 
Mich.   9    (1886). 

Mississippi.  Water  Valley  v. 
State,  60  So.  576  (Miss.  1913); 
Alexander  v.  Woods,  60  So.  1017 
(Miss.  1913),  citing  Supreme  Court 


Rule  31.  But  in  Castleman  v. 
State,  94  Miss.  609  (1908),  it  was 
held  that  a  restraining  order  pend- 
ing hearing  is  unknown  in  Missis- 
sippi practice. 

New  Jersey.  Thompson  Iron  Co. 
V.  Allentown,  etc.,  Co.,  28  N.  J.  E. 
77    (1877). 

Pennsylvania.  Eq.  Rule  81.  An 
injunction  issued  ex  parte  under 
an  order  made  before  affidavits 
filed  is  void,  although  the  injunc- 
tion order  is  conditioned  that  the 
injunction  is  not  to  issue  until  they 
be  filed.  Juniata,  etc.,  Co.  v.  Wil- 
son, etc.,  Co.,  226  Pa.  407   (1910). 

Bhode  Island.  Ex  parte  injunc- 
tions as  such  are  prohibited;  but 
restraining  orders  pending  hearing 
are  allowed.     Eq.  Rule  32. 

West  Virginia.  Kalbitzcr  v.  Good- 
hue, 52  W.  Va.  435   (1903). 

United  States.  Eq.  Rule  73; 
"Judicial  Code,"  Sec.  263.  For 
case  (under  the  former  rules) 
where  notice  dispensed  with,  see 
Worth,  etc.,  Co.  v.  Bingham,  116 
Fed.  785,  54  C.  C.  A.  119  (1902) ;  for 
ease  under  the  new  rules  see  Thul- 
!en  V.  Trumph  El.  Co.,  212  Fed.  143 
(C.  C.  A.  1914). 

39.  Alabama  Code,  Sec.  4533; 
New  Jersey,  Eq.  Rule  127;  United 
States,  "Judicial  Code,"  Sec. 
263. 

40.  In  Alabama  hearing  is  to  be 
within  ten  days,  on  three  days '  no- 
tice.    Code,  Sec.  4528. 

In  Massachusetts  the  matter 
shall    be    made    returnable    at    the 


744 


EQUITY  PRACTICE 


In  a  few  jurisdictions  the  rules  or  statutes  regarding 
hearings  on  injunctions  merely  provide  that  the  court 
may  in  its  discretion  require  notice  and  hearing  before 
granting  an  injunction.^^  In  a  few,  ex  parte  injunctions 
issue  almost  as  of  course,  upon  the  plaintiff's  filing  a 
bond  with  sufficient  sureties,  conditioned  to  pay  all  dam- 
ages and  costs  caused  thereby  if  he  is  finally  found  not 
to  be  entitled  to  the  injunction,^-  and  without  his  show- 
ing that  irreparable  injury  is  threatened  or  that  there  is 
other  special  cause  for  granting  the  injunction.  A  draft 
of  the  bond  required  and  the  order  desired  should  be 
presented  to  the  court  for  examination  at  the  time  of 
making  the  motion,  to  be  later  filed  with  the  clerk,  if 
approved,  with  the  order  for  the  injunction.  The  order 
does  not  usually  set  a  date  for  a  hearing,  but  it  is  for  the 
defendant,  if  he  is  dissatisfied  with  the  injunction,  to 


earliest  possible  time,  and  in  no 
event  later  than  ten  days  from  the 
order,  and  shall  take  precedence 
of  all  matters  except  older  matters 
of  the  same  character.  Upon  two 
days'  notice  to  the  party  obtain- 
ing restraining  order  opposite 
party  may  appear  and  move  its  dis- 
solution or  modification,  and  the 
court  shall  hear  and  determine  the 
motion  as  expeditiously  as  the  ends 
of  justice  require.  Acts  of  1913, 
Chaps.   155,  890. 

In  Pennsylvania  the  hearing  is 
to  take  place  after  five  days  from 
original  order  or  at  such  other 
time  as  may  be  fixed.     Eq.  Eule  8. 

In  Vermont,  the  hearing  is  to  be 
at  an  early  date,  but  on  two  days' 
notice  to  the  plaintiff  the  defend- 
ant may  move  that  hearing  date 
be  advanced,  and  the  chancellor 
shall  then  hear  and  determine  the 
application  as  expeditiously  as  the 
ends  of  justice  require.  Eq.  Eule 
40   (as  amended  1913). 


Under  the  new  Federal  Equity 
Eules  the.  hearing  is  to  be  at  the 
earliest  possible  moment  and  in  no 
case  later  than  ten  days  from  the 
date  of  the  order,  when  it  is  to 
take  precedence  of  all  matters  ex- 
cept older  matters  of  the  same 
character.  At  this  hearing,  if  the 
party  obtaining  the  temporary  or- 
•ler  does  not  proceed  with  his  ap- 
plication for  preliminary  injunc- 
tion, the  order  will  be  dissolved. 
The  opposite  party  may  in  the 
meantime  before  the  day  set  for 
the  hearing  appear  on  two  days' 
notice  and  move  for  the  dissolu- 
tion of  the  order.     Equity  Eule  73. 

41.  Virginia  Code,  See.  3440. 
This  was  the  rule  in  Vermont  prior 
to  1913.  Eq.  Eule  40,  as  un- 
amended. 

42.  Maine  E.  S.,  Chap.  79,  Sec. 
35;  Equity  Eule  38;  New  Hamp- 
shire, Eq.  Eule  108,  semble. 


INJUNCTIONS  745 

move  for  its  modification  or  dissolution,  otherwise  it 
continues  until  final  hearing.  In  these  jurisdictions, 
however,  it  is  not  indispensable  for  obtaining  an  ex  parte 
order  that  a  bond  should  be  filed.  Instead  of  filing  a 
bond  and  obtaining  an  injunction  at  once,  the  plaintiff 
may  at  the  time  of  filing  his  bill  ask  to  have  a  hearing 
set  at  an  early  date  on  the  question  of  issuing  the  injunc- 
tion, and  also  to  have  a  restraining  order  pending  the 
hearing.  The  court  may  then  by  its  order  both  set  the 
date  for  the  hearing,  and  also  issue  the  restraining  order, 
without  bond,  to  restrain  the  defendant  until  such  hear- 
ing, if  it  is  satisfied,  by  affidavit  or  proof  ex  parte,  that 
the  plaintiff  is  in  immediate  danger  of  injury  prior  to 
the  hearing.^^  Such  restraining  orders  should  not  be 
allowed  to  furnish  a  method  of  evading  tlie  necessity  of 
either  filing  bond  or  submitting  to  hearing,  and  should 
be  resorted  to  for  purposes  only  of  restraint  during  a 
brief  time. 

§  459.  Injunctions  pending  the  cause.  In  addition  to 
injunctions  granted  immediately  upon  filing  the  bill  and 
before  any  further  step  has  been  taken  in  the  cause,  and 
therefore  called  preliminarj^,  injunctions  may  be  granted 
during  the  further  progress  of  the  cause  in  proper  cases. 
Such  injunctions  are  temporary  and  provisional  in  their 
nature,  but  are  to  be  distinguished  from  preliminary  in- 
junctions, strictly  speaking,  in  that  the  latter  are  granted 
on  the  very  threshold  of  the  cause  and  always  upon  the 
case  made  by  the  bill  and  a  special  prayer  therefor, 
while  the  former  are  specially  applicable  to  those  cases 
where  the  occasion  for  the  injunction,  such  as  imme- 
diate danger  of  substantial  or  irreparable  injury,  has  not 
arisen  or  become  apparent  until  after  the  filing  of  the 
bill.  These  new  facts  should  be  presented  to  the  court 
by  sworn  petition  or  by  affidavit,  and  the  procedure  is 

43.  So  held  in  Mississippi  in  Wa-  So.  1017  (1913),  citing  Sup.  Ct. 
ter  Valley  v.  State,  60  So.  576  Rule  31.  But  see,  contra,  Castleman 
(1913);    Alexander    v.    Woods,    60       v.  State,  94  Miss.  609  (1908). 


r46 


EQUITY  PRACTICE 


substantially  the  same  in  other  respects  as  on  an  applica- 
tion for  preliminaiy  injimction.*^ 

§  460.  Injunction  bonds — When  required  or  permitted. 
In  certain  states,  a  bond  is  ordinarily  required  from  the 
person  apphing  for  a  preliminary-  injunction,  before  the 
injunction  will  issue,  unless  the  bond  be  dispensed  with 
by  order  of  court  and  regardless  of  whether  the  injunc- 
tion issues  ex  parte  or  after  a  hearing:  *'''  while  in  other 
states,  bonds  are  regularly  required  only  in  the  case  of 
ex  parte  injunctions  and  restraining  orders,  and  in  some 


45.  Injunctions  of  this  nature 
have  always  been  granted  under 
general  ehancenr  powers,  and  are 
rarelv  covered  by  express  provi- 
sions of  the  rules  and  statutes,  or 
mentioned  in  the  reported  cases. 
See  however  Maine  B,  S.,  Chap. 
79,  Sec.  35,  for  such  an  express 
provision.  In  New  Hampshire 
such  injunctions  continue  in  force 
until  final  determination  of  the 
cause  unless  modified  or  dissolved 
on  special  application.  £q.  Bule 
107.  In  New  Jersey  no  injunction 
can  be  granted  after  answer  filed 
except  on  five  days'  notice  of  the 
application,  unless  the  court  is  sat- 
isfied that  notice  should  be  dis- 
pensed with.     Eq.   Bule   12S. 

46.  Alabama.  Code.  Sees.  451-5 
to  4517.  K<e5training  orders  should 
also  be  accompanied  with  a  bond. 
Code,  Sec.  4533.  An  injunction  is- 
sued without  a  bond  is  voidable. 
Jones  V.  Ewing,  56  Ala.  360 
(1S76.. 

Florida.  G.  S..  Sec.  1915:  Sav- 
age V.  Parker,  53  Fla.  1002  (1907). 
The  granting  of  a  restraining  or- 
der pending  the  execution  and  fil- 
ing of  an  injunction  bond  is  im- 
proper. Gillespie  v.  Chapline,  59 
Fla.  500  (1910);  HaU  v.  Home,  52 
Fla.  510   (1906). 


Illinois.  J.  i  A.  T  6169,  Hurd's 
Stat.,  Chap.  69,  Sec.  9.  But  bond 
will  be  excused  where  the  public  in- 
terest demands  that  the  injunction 
issue.  Key  v.  Cralena  Water  Co, 
130  HI.  App.  .59S  (1908).  And  it 
is  said  in  Greenberg  v.  Holmes, 
100  ni.  App.  1S6  (1902),  that 
l.'Onds  are  not  necessary  except  in 
the  case  of  injunctions  against  ac- 
tions at  law.  Compare  Deemar  v. 
Boyne,  103  DL  App.  464  (1902). 

MississippL  Code,  Sees,  610  to 
613;  Castleman  v.  State,  94  Miss. 
609    (190S). 

PennsylTaula,  Purdon  's  Dig. 
(1903),  p.  1422,  Sec.  50;  Equity 
Bule  82:  Makoff  v.  Shearman,  36 
Pa.  Super.  624  (1908-;  Erie,  etc., 
R.  Co.  V.  Casey,  26  Pa.  287  (1856). 

Tennessee.     Code,  Sees.   6256-7. 

Vermont,  Equity  Bule  39.  But 
no  bond  is  required  where  injunc- 
tion is  sought  by  a  public  officer 
or  by  virtue  of  an  act  of  the  legis- 
lature,   /feid. 

Virginia-  Code,  Sees.  3441, 
S442.  But  no  bond  is  required 
from  personal  representative  of 
decedents  or  from  others  from 
whom  it  seems  to  the  court  use- 
less to  refuse  a  bond.  Code,  Sec. 
3442. 


INJUNCTIONS  747 

of  tliese  the  giving  of  a  bond  is  practically  an  option 
available  to  the  person  applying  for  a  preliminary  in- 
junction, obviating  the  necessity  of  any  notice  and  hear- 
ing on  the  injunction  until  required  by  the  defendant  on 
a  motion  for  its  modification  or  dissolution,  and  no  bond 
is  required  where  notice  has  been  given  and  a  hearing- 
had.^'''  In  the  remaining  states  no  express  provisions  in 
regard  to  bonds  in  general  chancery  cases  are  found  in 
rules  or  statutes,  but  according  to  general  chancery  prin- 
ciples, the  discretion  of  the  court  governs.  In  many  of 
the  states  of  all  these  classes,  however,  there  are  express 
provisions  for  bonds  to  be  given,  when  injunctions  issue, 
either  ex  'parte  or  after  a  hearing,  against  pending  ac- 
tions at  law,  or  against  the  enforcement  of  judgments 
obtained  at  law.^^  The  necessity  of  bonds  arose  from 
the  common  law  principle  which  authorized  a  recovery 
of  damages  for  the  issuance  of  an  erroneous  injunction 
only  in  case  the  suit  was  prosecuted  maliciously  and 
without  probable  cause. 
§  461.  Nature  of  the  injunction  bond.     The  condition 

47.  Maine.     E.  S..  Chap.  79,  Sec.       it.  is  alleged  that  the  judgment  and 
35;   Eq.   Rule   38.  verdict    was    obtained    by    fraud. 

New  Hampshire.     Eq.  Rule   108.  Comp.     L.,     Chap.     29,     Sec.     105 

New   Jersey.      Eq.    Rule    127.  (§510).      No   bond   is   required   in 

United  States.    "Judicial  Code, "  any   kind   of  case   not  specified  in 

Sec.   263.  the  statutes.    Skutt  v.  Ionia  C.  J., 

48.  Alabama.      Code,   Sees.   4515,  158    Mich.    43    (1909). 

4523.  Mississippi.    Code,  Sec.  609;  Till- 

Florida.      Gen.    St.,   Sec.    1914.  man  v.  Heard,  95  Miss.  238  (1903), 

Illinois.      J.    &    A.    IfH  6163-6168,  New  Jersey.    Comp.  St.,  "Chan- 

Hurd's    Stat.,    Chap.    69,    Sees.    3  eery,"  Sees.  64  to  66;  Eq.  Rule  126 

to  8.  (relating  to   ejectment). 

Maryland.      Code,   Art.    21,   Sec.  Tennessee.     Code,  Sees.  6256-7. 

77, — relates  to   suits   by  executors  Vermont,     P.    S.,   Sees.    1281   to 

and   administrators   only.  1283.      No   bond   is   required   when 

Michigan.      Comp,   L.,   Chap.   29,  it   is  alleged   that  venlict  was  ob- 

Sees.    97    to    109    (§§502    to    514).  tained  by  fraud.   Ilid. 

An     injunction     obtained     without  West  Virginia.     Glen  Jean,  etc., 

such    bond    is    void.      Lawton    v.  R.    Co.   v.    Kanawha,   etc.,   R.    Co., 

Richardson,    115    Mich.    12    (1897).  47  W.  Va.   725   (1909). 
No  bond  however  is  required  when 


748 


EQUITY  PRACTICE 


of  the  injunction  bond  shonld  follow  the  language  pre- 
scribed by  the  statutes  or  ndes.^''  If  it  does  not,  it  may 
nevertheless  be  a  binding  obligation  according  to  its 
terms,  and  if  it  is  accepted  by  the  court  and  injunction 
obtained  upon  it  the  plaintiff  will  be  bound  by  it.^" 
Where  it  is  intended  as  a  statutorj^  bond,  but  contains 
an  obligation  in  excess  of  the  statutory  requirements, 
the  surplusage  may  be  rejected  as  inoperative.^^  The 
bond  being  necessarily  given  in  the  absence  of  the  de- 
fendant does  not  require  his  acceptance  ^-  but  must  be 


49.  See  forms  for  injunction 
bond   in  the  third  volume. 

50.  Boehner  v.  Automatic,  etc., 
Co.,  80  111.  App.  27  (1899);  Wan- 
less  V.  West,  etc.,  R.  Co.,  77  111. 
App.  120  (1898);  Barrett  v.  Bow- 
ers, 87  Me.  187  (1895).  In  this  last 
case  the  condition  of  the  bond  was 
that  plaintiff  shall  pay  all  damages 
sustained  "if  said  injunction  is 
finally  dissolved."  The  court 
said:  "The  bond  filed  was  not  a 
statute  bond,  but,  nevertheless,  a 
binding  obligation  according  to  its 
terms.  It  enables  the  plaintiff  to 
procure  his  injunction,  and  there 
is  no  reason  why  he  should  not 
respond  to  the  condition  he  volun- 
tarily entered  into  as  a  prerequi- 
site in  that  behalf." 

In  regard  to  the  condition  in  an 
injunction  bond  under  the  Virginia 
practice  see  Columbia,  etc..  Amuse- 
ment Co.  V.  Pine  Beach  Corp.,  109 
Va.   325    (1909). 

In  a  suit  on  the  bond  the  court 
will  not  imply  conditions  which 
were  not  expressed  in  the  bond, 
though  their  inclusion  would  make 
the  bond  of  the  usual  form,  and 
it  is  claimed  they  were  inadvert- 
ently omitted.  Ballard  v.  Logan, 
68  W.  Va.  655   (1911). 

Independent   of   statute    a    court 


may  impose  such  terms  in  the  in- 
junction bond  as  it  deems  proper 
in  its  discretion.  Am.  Bonding 
Co.  V.  State,  87  Atl.  922  (Md. 
1913). 

51.  Thus  in  Prop,  of  Union 
Wharf  V.  Mussey,  48  Me.  307 
(1859),  where  a  bond  was  given 
conditioned  to  pay  "all  such  dam- 
ages and  costs  (if  any)  as  shall  be 
sustained  and  awarded"  while  the 
condition  of  the  statute  (R.  S. 
1841,  Chap.  96,  Sec.  11)  was  "to  re- 
spond to  all  damages  and  costs," 
merely,  it  was  claimed  that  the 
words  "and  awarded"  were  in  ex- 
cess of  the  requirements  of  the 
statute;  that  it  was  imma- 
terial what  damages  had  been  sus- 
tained; if  none  were  awarded  the 
defendants  were  without  remedy. 
But  the  court  held  that  the  addi- 
tional words  "and  awarded" 
might  be  rejected  as  mere  nullity 
and  the  bond  construed  as  if  these 
words  were  not  contained  therein. 

52.  Prop.  Union  Wharf  v.  Mus- 
sey, 48  Me.  307  (1861);  Burgess 
V.   Lloyd,   7   Md.   178    (1854). 

The  defendant  may  waive  a  de- 
fective bond  by  failing  to  move 
for  a  new  bond  or  for  dissolution 
of  the  injunction.  Jones  v.  Gray, 
91   111.   App.   79    (1900). 


INJUNCTIONS 


749 


approved  and  accepted  by  the  court  or  such  officer  as  it 
may  order,  usually  the  clerk.^^ 

§  462.  Damages  on  bonds.  In  some  jurisdiction  dam- 
ages on  an  injunction  bond  may  be  decreed  by  the  equity 
court,^*  usually  after  reference  to  a  master,^^  upon  the 
dissolution  of  the  injunction.  The  decree  is  made  upon 
motion  (or  "suggestion"  as  it  is  sometimes  called)  which 


53.  An  order  refusing  to  dissolve 
an  injunction  is  equivalent  to  an 
approval  of  the  bond.  St.  John  v. 
North  Utica,  157  111.  App.  504 
(1910). 

The  objection  that  the  bond  was 
not  approved  by  the  court  must  be 
taken  advantage  of  by  motion  to 
dissolve,  but  not  at  the  hearing. 
Boston  v.  Nichols,  47  111.  353 
(1868). 

54.  Illinois.  J.  &  A.  116172, 
Kurd's  Stat.,  Chap.  69,  Sec.  12; 
Toledo,  etc.,  E.  Co.  v.  St.  Louis, 
etc.,  R.  Co.,  208  111.  623  (1904).  A 
hearing  must  be  had  and  evidence 
presented.  Reed  v.  N.  Y.,  etc.. 
Bank,   230  111.   50    (1907). 

Maine.     R.  S.,  Chap.  79,  Sec.  35. 

Michigan.  C.  L.,  Chap.  29,  Sec'. 
103  (§508);  Hatheway  v.  Weeks, 
34   Mich.   237    (1876). 

Mississippi.  Code,  Sees.  623-4; 
Canadian,  etc.,  Co.  v.  Fitzpatriek, 
71  Miss.  347  (1893).  But  the 
court  should  not  give  judgment  on 
the  bond  for  the  amount  of  the 
original  judgment  which  had  been 
enjoined.  Steadman  v.  Butler,  95 
Miss.  695   (1909). 

New  Jersey.     J^q.  Rule  127. 

Tennessee.  Code,  Sec.  6259; 
Haines  v.  Lebanon,  etc.,  Bank,  106 
Tenn.  425   (1900). 

Vermont.  P.  L.,  Sees.  1284, 
1287;  Eq.  Rule  39.  Damages  on 
dissolution    of    injunction    by    final 


decree  may  be  assessed  in  the  same 
way.    Ibid. 

Virginia.      Code,   Sec.    3445. 

West  Virginia.     Code,  Sec.  4958. 

United  States.  Whether  or  not 
the  equity  court  can  assess  the 
damages  so  as  to  give  judgment 
therefor,  it  can  at  least  order  a 
reference  to  determine  the  amount 
thereof,  although  in  its  discretion 
it  may  leave  the  whole'  matter  to 
be  determined  in  a  suit  at  law  on 
the  bond.  Redlich,  etc.,  Co.  v. 
.John  H.  Rice  &  Co.,  203  Fed.  722 
(1913);  West  v.  East  Coast,  etc., 
Co.,  113  Fed.  742,  51  C.  C.  A.  416 
(1902);  Tyler,  etc.,  Co.  v.  Last 
Chance,  etc.,  Co.,  90  Fed.  15 
(1898). 

In  Maryland  the  court  of 
equity  cannot  decree  relief  upon 
the  injunction  bond;  the  obligee 
must  sue  at  law.  Am.  Bonding 
Co.  V.  State,  87  Atl.  922   (1913). 

55.  Michigan.  How.  Ann.  St.  (2d 
ed.),  Sec.  12026;  C.  L.,  Chap.  29, 
Sec.  103  (§  508). 

Mississippi.      Code,   Sees.   623-4. 

New  Jersey.  Eq.  Rule  127;  L. 
Martin  Co.  v.  L.  Martin,  etc.,  Co., 
75  N.  J.  E.  39,  see  75  N.  J.  E.  257 
(1908-9). 

Tennessee.  Code,  Sees.  6256, 
6259;  King  v.  Cox,  151  S.  W.  58 
(Tenn.  1913).  The  question  may 
be  referred  to  a  jury.    Ibid. 

Vermont.  P.  L.,  Sees.  1284,  1287; 
Eq.  Rule  39. 


750 


EQUITY  PRACTICE 


is  usually  in  writing  ^^'  as  to  the  nature  and  the  amount 
of  the  damages  and  after  the  hearing  of  evidence.  Upon 
such  decree  an  execution  may  issue.^" 

Damages  are  awarded  directly  by  the  court  of  equity 
principally  in  those  cases  where  the  plaintiff  is  found 
not  entitled  to  his  injunction  before  final  decree  is  ren- 
dered in  the  suit.  Otherwise  damages  are  determined  in 
a  suit  on  the  bond.  In  most  jurisdictions  such  right  of 
action  on  the  bond  does  not  accrue  till  after  a  final  decree 
is  rendered  in  the  cause,  since  there  is  always  a  possi- 
bility that  a  preliminary  injunction  may  be  reinstated 
and  perpetuated  at  the  final  hearing.^^  But  in  Alabama 
and  Illinois,  action  on  the  bond  may  be  begun  although 
the  case  has  not  gone  to  final  decree.'' "^  A  right  of  action 
accrues    on    the    bond    after   a    partial    dissolution    of 


56.  lUinois.  J.  &  A.  116172, 
Kurd's  Stat.,  Chap.  69,  Sec.  12;  To- 
ledo, etc.,  R.  Co.  V.  St.  Louis,  etc., 
E.  Co.,  208  111.  620  (1904).  Such 
motion  must  be  made  before  the 
case  is  finally  disposed  of.  Con- 
way V.  Pope,  161  111.  App.  119 
(1911). 

Maine.     R.  S.,  Chap.  79,  Sec.  35. 
Mississippi.      Code,   Sec.    624. 
West  Virginia.     Code,  Sec.  4958. 

57.  Alabama.  Code,  Sec.  4523 
(where  bond  was  on  an  injunc- 
tion against  a  judgment  at  law 
or  pending  law  suit). 

Illinois.  J.  &  A.  116172,  Kurd's 
Stat.,  Chap.  69,  Sec.  12. 

Mississippi.    Code.  Sees.  622,  623. 
Tennessee.     Code,  Sec.  6264. 
Virginia.     Code,  Sec.  3445. 
West  Virginia.     Code,  Sec.  4958. 

58.  Thurston  v.  Kaskell,  81  Me. 
303  (1889).  An  entry  on  the 
docket  dismissing  the  bill  on  its 
merits  after  final  hearing  is  equiv- 
alent for  the  purpose  of  suit  on 
the  bond  to  a  final  decree.    Ibid. 


Maryland.  Gray  v.  Veirs,  33 
M(l.   159    (1870). 

Massachusetts.  Foster  v.  Good- 
rich,   127    Mass.    176    (1879). 

Mississippi.  Code,  Sec.  621; 
Vicksburg,  etc.,  Co.  v.  Vicksburg, 
99  Miss.  132  (1910);  Yazoo,  etc., 
R.  Co.  V.  Adams,  78  Miss.  977 
(1901);  Goodbar  v.  Dunn,  61  Miss. 
624    (1884). 

United  States.  Xashville,  etc., 
R.  Co.  V.  R.  R.  Comm.,  171  Fed. 
223   (C.  C.   1909). 

59.  Alabama.  Code,  Sec.  788; 
Gray  v.  South,  etc.,  R.  Co.,  162 
Ala.  262  (1909);  Jesse  French,  etc., 
Co.  V.  Forbes,  134  Ala.  302,  92  A. 
S.   R.   31    (1902). 

Illinois.  Shackleford  v.  Ben- 
nett, 237  111.  523  (1909);  Keith  v. 
Kenkleman,   173  111.   137    (1898). 

Of  course  it  is  not  a  condition 
precedent  to  suing  on  the  bond 
that  the  court  should  have  fixed 
the  amount  of  damages  on  dissolv- 
ing the  injunction.  Lovece  v.  De- 
Marco,  170  111.  App.  522   (1912). 


INJUNCTIONS 


751 


injunction  on  final  decree,'"^  after  a  dismissal  of  the  bill 
on  final  hearing  or  on  demurrer,"^^  or  for  want  of  juris- 
diction,^^^  since  these  amount  to  a  final  disposition  of 
the  canse  adversely  to  the  plaintiff.  So  the  voluntary 
dismissal  of  the  suit  by  the  plaintiff  has  the  same  effect.^^ 
As  to  the  measure  of  damages,  the  general  rule  is  that 
the  condition  of  an  injunction  bond  does  not  cover  remote 
or  speculative  damages,  but  only  such  as  are  the  natural 
and  proximate  results  ^^  with  the  exercise  of  ordinary 
care  on  the  part  of  the  defendant.^ ^  So  mere  speculative 
profit  ^^  or  exemplary  damages  ^^  are  not  recoverable  in 
an  action  on  the  bond.  Damages  within  the  meaning  of 
the  bond  are  pecuniary  losses  arising  from  the  restraint 


60.  Smith  v.  Mutual  Loan  Co., 
102  Ala.  282  (1893);  Lambert  v. 
Alcorn,  144  111.  313   (1893). 

61.  Zeigler  v.  David,  23  Ala.  127 
(1853).  The  same  is  true  even 
though  the  dismissal  is  without 
prejudice.  Yale  v.  Baum,  70  Miss. 
225    (1892). 

61a.  Adams  v.  Olive,  57  Ala. 
249  (1876);  Walton  v.  Develing, 
61  111.  201   (1871). 

62.  East  Lake  v.  DeVore,  169 
Ala.  237   (1910). 

63.  Illinois.  Chicago  Title,  etc., 
Co.  V.  Chicago,  209  111.  172,  aff. 
110  111.  App.  395  (1903-4),— a  case 
where  the  original  defendant  was 
not  allowed  in  a  suit  on  the  bond 
to  recover  damages  for  the  mali- 
cious  suing  out   of  the   injunction. 

Maryland.  Am.  Bonding  Co.  v. 
State,  87  Atl.  922  (1913);  Phoenix 
Pad  Co.  V.  United  States,  111  Md. 
549  (1909);  Wood  v.  State,  66 
Md.  61    (1886). 

New  Hampshire.  New  England 
Box  Co.  V.  Prentiss,  76  N.  H.  313 
(1912). 

Pennsylvania.  Sensenig  v. 
Parry,  113  Pa.  St.  115   (1886). 


Tennessee.  Southern  E.  Co.  v. 
Pardue,  123  Tenn.  376  (1910); 
State  V.  Springfield,  48  S.  W.  813 
(Ch.  App.  1898).  Where  the  in- 
jury is  trivial  only  nominal  dam- 
ages can  be  recovered.  Boyd  v. 
Knox,  53  S..  W.  922  (Ch.  App. 
1899). 

Vermont.  Foster  v.  Nat.  Bank, 
53  Vt.  658  (1884);  Lillie  v.  Lillie, 
55    Vt.   470    (1883). 

Virginia.  See  Columbia  Amuse- 
ment Co.  V.  Pine  Beach,  etc.,  Corp., 
109  Va.  325  (1909);  Virginia,  etc., 
Co.  V.  Comm.,  78  S.  E.  617  (Va. 
1913). 

United  States.  Coosaw,  etc.,  Co. 
V.  Carolina,  etc.,  Co.,  75  Fed.  860, 
aff.  82  Fed.  1000,  27  C.  C.  A.  679 
(1896-7). 

64.  Center  v.  Hoag,  52  Vt.  401 
(1880). 

65.  Lehman  v.  McQuown,  31 
Fed.   138   (C.   C.   1887). 

66.  Crate  v.  Kohlsaat,  44  111. 
App.    460    (1891). 

But  punitive  damages  may  at 
least  in  some  cases  be  awarded  in 
Tennessee.  South  Penn  Oil  Co.  v. 
Stone,  57  S.  W.  374  (1900). 


752 


EQUITY  PRACTICE 


imposed  by  the  injunction  and  do  not  therefore  include 
expenditures  for  counsel  fees  in  the  defense  of  the  main 
suit,''^  but  may  include  the  counsel  fees  expended  in  ob- 
taining a  dissolution  of  a  preliminary  injunction  on  mo- 
tion before  final  hearing."^  In  a  few  states,  the  code 
gives  an  arbitrarj^  percentage  as  damages,  when  an  in- 
junction has  been  obtained  against  a  judgment  at  law, 
bond  has  been  given,  and  injunction  has  been  later  dis- 
solved.*^^ 

§  463.  The  interlocutory  injunction  order.  When  a 
preliminary  injunction  or  injunction  pending  the  cause 
has  been  granted  by  the  court,  it  must  be  embodied  in 
the  form  of  an  interlocutory  order  or  decree,  which 
should  be  drawn  by  the  counsel  for  the  plaintiff,  submit- 
ted to  the  court  for  signature,  filed  with  the  clerk  imme- 
diately after  having  been  signed,  and  docketed  by  the 
clerk. ^    The  injunction  order  should  be  clear  and  certain 


67.  Alabama.  Curry  v.  Ameri- 
can, etc.,  Co.,  124  Ala.  614   (1900-). 

Illinois.  Goff  v.  Eckert,  65  111. 
App.  616    (1895). 

Maine.  Barrett  v.  Bowers,  87 
Me.  187  (1895);  Haskell  v.  Thurs- 
ton, 81  Me.  303   (1889). 

68.  Alabama.  Fidelity  &  Depo- 
sit Co.  V.  Walker,  158  Ala.  129 
(1909);  Bush  v.  Kirkbridge,  131 
Ala.  405  (1901);  Jesse  French, 
etc.,  Co.  V.  Forbes,  134  Ala.  302, 
02  Am.  St.  Rep.  31   (1902). 

Illinois.  Princeton  v.  Gustav- 
Bon,  241  111.  566  (1909);  Landis  v. 
Wolfe,  206  111.  392  (1903);  Keith 
1-.  Henkleman,  173  111.  137   (1898). 

Maine.  Barrett  v.  Bowers,  87 
Me.   185    (1895),  semble. 

New  Jersey.  Cook  v.  Chapman, 
41  N.  .J.  E.  152   (1886). 

West  Virginia.  State  v.  Gra- 
ham, 69  S.  E.  301  (W.  Va.  1910); 
State  V.  Corvin,  51  W.  Va.  19 
(1902). 


Contra: 

Pennsylvania.  Sensenig  v. 
Parry,   113   Pa.   115    (1886). 

Virginia.  Wisecarver  v.  Wise- 
carver,  97  Va.  452  (1899).  But 
the  bond  in  this  case  was  specially 
\/orded. 

United  States.  Missouri,  etc., 
E.  Co.  V.  Elliott,  184  U.  S.  530,  46 
L.  ed.  673  (1902).  But  a  docket 
fee  of  $20  can  be  recovered.  Be 
Hines,  144  Fed.  147  (D.  C.  1906). 
And  compare  Tulloch  v.  Mulvane, 
61  Kan.  650,  reversed  184  U.  S. 
497,  46  L.  ed.  657   (1900-2). 

69.  Mississippi.  5%.  Code,  Sec. 
623. 

Virginia.     10^^.    Code,  Sec.  3445. 

West  Virginia,  10%.  Code,  See. 
4958. 

1.  A  writ  of  injunction  cannot 
issue  without  a  special  order  of 
court  therefor.  Governor  v.  Wiley, 
14  Ala.  172  (1848);  Phelps  v. 
Foster,  18  111.  309  (1856).     A  mere 


INJUNCTIONS 


753 


in  its  terms,  so  that  the  person  enjoined  may  know  ex- 
actly what  he  can  or  cannot  do,  since  no  defendant  should 
be  led  into  a  contempt  by  vague  and  general  orders.^ 
The  order  usually  enjoins  the  defendant  "until  the  hear- 
ing of  the  cause  or  further  order  of  court. "  ^  It  is  not 
proper  upon  an  interlocutory  application  for  injunction 
to  order  a  perpetual  injunction,  or  in  general  to  render  a 


memorandum  on  the  bill  is  insuffi- 
cient. Smith  V.  Nelson,  131  111. 
App.   145    (1907). 

In  New  Hampshire,  the  judge 's 
order  itself  has  the  force  of  a  writ 
of    injunction.      Eq.    Rule    109. 

In  Tennessee,  the  judge  eavel- 
ops  the  injunction  order  and  sends 
it  under  seal  to  the  clerk,  who 
alone  has  the  right  to  open  the  en- 
velope.    Code,  Sec.  6255. 

In  Delaware,  the  order  ceases  to 
be  operative  on  the  second  day  of 
the  term  next  ensuing,  if  the  writ 
is  not  previously  issued.  Eq.  Rule 
65. 

In  Vermont,  unless  the  order  is 
docketed  within  twenty  days  or 
upon  the  filing  of  injunction  bond, 
the  order  ceases  to  be  operative. 
Laws  of  1908,  No.  54. 

In  Virginia  the  order  expires  in 
sixty  days,  in  cases  where  bonds 
are  required,  unless  the  bond  is 
previously  filed  and  the  writ  of  in- 
junction  issued   by  virtue  thereof. 

By  Federal  Equity  Rule  73,  re- 
straining orders  must  be  filed  at 
once   with   the   clerk. 

See  Williams  v.  Harper,  127  111. 
App.  127  (1906)  as  to  the  duty  of 
the  clerk  under  the  Illinois  prac- 
tice. 

The  practice  of  some  of  the 
states  requires  that  a  refusal  to 
grant  a  preliminary  injunction 
shall  be  indorsed  on  the  bill  and 
duly  docketed,  since  the  effect  of 
Whitehouse  E.  P.  Vol.  I — 48 


such  refusal  is  to  prevent  the  mat- 
ter from  being  presented  to  any 
judge  of  coordinate  powers.  Ala- 
bama Code,  Sees.  4518  to  4521; 
New  Jersey,  Eq.  Rule  129;  Tennes- 
see Code,  Sees.  6253,  6254. 

2.  Collins  V.  Wayne  Iron  Works, 
227  111.  326  (1910).  See  Sec.  473, 
post,  p.  770. 

3.  Minturn  v.  Seymour,  4  Johns. 
Ch.    (N.  Y.)    173    (1819). 

In  Marble  v.  McKenney,  60  Me. 
332  (1872),  the  practice  of  continu- 
ing the  temporary  injunction  from 
term  to  term  until  the  case  is  ready 
for  final  hearing,  unless  it  is  sooner 
dissolved  on  motion,  was  ap- 
proved. 

In  Virginia  where  an  injunction 
is  granted  without  notice,  the  court 
or  judge  must  prescribe  in  the  in- 
junction order  the  time  during 
which  the  injunction  shall  be  ef- 
fective and  at  the  expiration  of 
this  time  it  shall  stand  dissolved 
unless  sooner  enlarged  or  dissolved 
on  notice  by  either  party  and  hear- 
ing thereon.  Laws  of  1908,  p.  36; 
Code,  Sec.  5435A. 

In  New  Hampshire^  injunctions 
ordered  in  vacation  expire  with 
the  close  of  the  next  term  unless 
continued  on  motion;  but  when 
so  continued,  remain  effective  until 
modified  or  dissolved  on  special 
application  (or  as  an  incident  to 
the  final  disposition  of  the  case). 
Eq.   Rules   106-107. 


754 


EQUITY  PRACTICE 


final  decree  upon  the  merits  of  the  cause/  although  the 
bill  may  be  dismissed  on  motion  for  preliminary  injunc- 
tion when  the  injunction  is  the  only  relief  sought,  and 
when  the  application  lacks  equity  and  can  obviously  not 
be  amended  to  make  a  better  case,^  and  in  some  states 
the  bill  is  so  dismissed  as  a  matter  of  course  on  dissolu- 
tion of  an  injunction  previously  granted. 

It  is  within  the  discretion  of  the  court  as  the  condition 
of  granting  or  refusing  an  order  for  an  injunction,  to 
impose  terms  on  either  party  as  circumstances  may  re- 
quire.^ Thus  the  court  may  order  the  plaintiff  to  pay 
money  to  the  defendant  or  into  court  as  the  condition  of 
obtaining  an  injunction,'  or  may  impose  as  a  condition 
that  an  injunction  against  the  same  matter  go  against 
the  plaintiff,^  or  may  refuse  the  injunction  provided  the 


4.  Hemingway  v.  Preston,  Walk. 
Ch.  528  (Mich.  1845);  Penn.  K. 
Co.  V.  R.  Co.,  53  N.  J.  E.  178 
(1895);  New  Memphis  Gas  Co.  v-. 
Memphis,  72  Fed.  952  (C.  C. 
1896). 

5.  Florida.  Richardson  v.  Kit- 
tlewell,  45  Fla.  551  (1903),  semble. 

Illinois.  Leonard  v.  Arnold,  244 
Til.  429  (1910);  Field  v.  Western 
Springs,   181    111.   186    (1899). 

Maryland.  Gulick  v.  Fisher,  92 
Md.  353  (1901);  Davis  v.  Baltc, 
etc.,  R.  Co.,  102  Md.  371   (1905). 

Michigan.  Smith  v.  Nelson,  165 
Mich.  438   (1911). 

Mississippi.  On  injunction  dis- 
solved, bill  is  dismissed  as  of 
course,  unless  cause  is  shown. 
Code,  Sec.  621;  Evans  v.  Money, 
61  So.  309   (1913). 

Tennessee.  Mitchell  v.  Williams, 
46  S.  W.  325  (Ch.  App.  1897), 
sembJe. 

Virginia.  Dissolution  of  injunc- 
tion dismisses  bill  unless  cause  is 
shown.     Code,  Sec.  3446. 


West  Virginia.  Yates  v.  West 
Grafton,  34  W.  Va.  783  (1891). 
But  dissolution  of  injunction  dis- 
misses bill  unless  cause  shown. 
Code,  Sec.  4959. 

6.  Illinois.  Hanford  v.  Blessing, 
80  111.  188   (1875). 

Mississippi.  Cox  v.  Vogh,  33 
Miss.   187   (1857). 

New  Jersey.  Gas  Lt.  Co.  v. 
South  River,  77  N.  J.  Eq.  487 
(1910). 

Pennsylvania.  Ewing  v.  Filley, 
43  Pa.  S.   384   (1862). 

Tennessee.     Eq.  Rule  6. 

Virginia.  Great  Falls  Mfg.  Co. 
V.  Henry,  25  Gratt.  (Va.)  575 
(1874). 

United  States.  Insulator  Co.  v. 
Mica  Co.,  157  Fed.  92  (C.  C.  1907); 
Fe  Arkansas  R.  R.  Rates,  168  Fed. 
720   (C.  C.  1909). 

7.  Allen  v.  Etheredge,  84  Ga. 
550   (1890). 

8.  Sternberg  v.  Wolff,  56  N.  J. 
Eq.    389    (1898). 


INJUNCTIONS 


755 


defendant  gives  an  indemnity  bond  to  plaintiff,  or  may 
grant  an  injunction  which  shall  be  dissolved  upon  the 
execution  of  such  a  bond  by  the  defendant.*^ 

§  464.  The  writ  of  injunction.  When  the  injunction 
order  has  been  duly  signed  and  entered,  the  writ  of  in- 
junction is  issued  by  the  clerk  as  a  matter  of  course,  in 
the  form  (if  any)  prescribed  by  the  chancery  rules. ^°  In 
inserting  in  the  writ  the  acts  to  be  enjoined,  the  clerk 
should  follow  verbatim  the  wording  of  the  order  of  court. 
The  writ  of  injunction  should  then  be  served  in  hand 
upon  the  defendant  by  a  proper  officer  as  the  surest  way 
of  notifying  him  of  its  contents,  although  if  he  has  actual 
knowledge  of  its  issuance  from  any  other  source,  he  will 
be  bound  by  it  without  service  of  the  writ.^^  The  writ 
must  be  served  within  a  reasonable  time,^^  and  the  better 
practice  is  to  have  it  issued  and  served  immediately  upon 
the  signing  and  entry  of  the  order. 


9.  Pike  V.  N.  H.  Trust  Co.,  67 
N.  H.  227  (1892)  ;  Mason  v.  Bridge 
Co.,  20  W.  Va.  223  (1882).  Such 
indemnity  bonds  have  been  fre- 
quently required  where  an  injunc- 
tion is  sought  against  the  infringe- 
ment of  a  patent  or  against  a  tres- 
pass or  nuisance.  Willcins  v.  At- 
kins, 17  Ves.  Jr.  422;  Leary  v. 
McDonough,  74  Ga.  838  (1885); 
Coe  V.  R.  Co.,  28  N.  J.  Eq.  27 
(1877);  Comly  v.  Buchanan,  81 
Fed.  58  (1897);  Jones  v.  R.  Co., 
41   Fed.   70    (1889). 

10.  Alabama  Code,  Sec.  4513. 
That  the  order  was  made  before 
the  bill  was  actually  filed  does  not 
invalidate  the  injunction.  Code, 
Sec.  4527. 

In  New  Hampshire,  the  judge's 
order  for  an  injunction  is  equiva- 
lent to  the  writ  of  injunction.  Eq. 
Rule  109. 

In  New  Jersey,  the  writ  is  re- 
quired to  be  issued  five  days  after 


date  of  order  or  fiat,  to  be  served 
within  twenty  days  after  issuance, 
and  return  of  service  is  to  be  made 
within  ten  days  after  service.  Eq. 
Rule  130. 

Where  bond  is  ordered,  this  must 
actually  be  filed  before  the  writ 
issues.  This  is  expressly  true  in 
Vermont,  but  equally  true  else- 
where. See  Vermont  P.  S.,  Sec. 
1285. 

11.  In  Tennessee,  it  is  suflScient 
service  of  an  injunction  to  leave  it 
at  the  house,  where  the  defendant 
attempts  to  evade  service.  And 
see  generally  Chap.  VII,  "Venue, 
Filing  and  Service,"  ante,  pp.  310 
et  seq.,  as  to  method  of  service. 
See  Sec.  473,  post,  p.  770,  as  to  the 
effect  of  notice  of  an  injunction. 

12.  McCormick  v.  Jerome,  3 
Blatehf.   486    (C.   C.   1856). 

See  the  New  Jersey  equity  rule, 
cited  above,  note  10. 


756 


EQUITY  PRACTICE 


§  465.  Effect  of  amendments  upon  injunctions.  Amend- 
ments of  the  bill  wliicli  do  not  introduce  auy  new  cause 
of  action,  but  merely  offer  additional  facts  in  support  of 
the  case  originallj'  made,  may  be  allowed  in  the  discre- 
tion of  the  court  at  any  stage  of  the  cause,^^  without 
prejudice  to  the  injunction,^^  but  an  injunction  granted 
upon  the  original  bill  before  amendment,  cannot  be  aided 
or  supported  by  a  subsequent  amendment  of  the  bill,^'' 
although  it  is  held  that  after  an  injunction  has  been 
actually  dissolved  on  its  merits  the  plaintiff  may  still 
amend  his  bill"  and  obtain  a  new  injunction  on  the  bill 
thus  amended. ^^ 

§  466.  Dissolution  of  injunctions.  An  interlocutory  in- 
junction, i.  e.  preliminary  or  pending  suit,  may  be  dis- 
solved in  the  discretion  of  the  court, ^"  upon  written  mo- 


13.  Even  after  motion  to  dis- 
solve. Conover  v.  Ruckman,  34  N. 
J.  Eq.  293,  297.  See  Chap.  XVII, 
"Amendments,"  ante,  pp.  520  et 
seq. 

14.  Davis  V.  Davis,  2  Sim.  515; 
Belzoni,  etc.,  Co.  v.  Yazoo,  etc.,  R. 
Co.,  47  So.  468  (Miss.  1908);  Lan- 
uing  V.  Heath,  25  N.  J.  Eq.  425 
(1874);  Rogers  v.  Forest,  3  Edw. 
Ch.  (X.  Y.)  171  (1841).  Even 
though  the  order  allowing  the 
amendment  does  not  contain  the 
•words  "without  prejudice  to  the 
injunction."  Warburton  v.  Rail- 
way Co.,  2  Beav.  253;  Adney  v. 
Flood,  1  Madd.  449;  Renwick  v. 
Wilson,  6  Johns.  Ch.  (N.  Y.)  81 
(1822);  but  it  is  better  practice  to 
include  them.  See  Bliss  v.  Bos- 
cawen,  2  Ves.  &  B.  101.  Adding 
a  new  plaintiff  is  held  to  be  such 
an  amendment  as  will  terminate  an 
injunction  previously  issued.  Att'y 
Gen.  V.  Marsh,  16  Sim.  575;  Ker- 
foot  V.  People,  51  Dl.  App.  409 
(1869). 


15.  Renwick  v.  Wilson,  6  Johns. 
Ch.  (N.  Y.)  81  (1822). 

But  an  injunction  granted  on  a 
faulty  bill,  and  fully  sustained  by 
proof  which  is  not  admissible  un- 
der the  bill  as  it  stands,  may  be 
continued  for  a  reasonable  time  to 
allow  the  plaintiff  to  amend  if  he 
desires.  Whetsell  v.  Elkin,  68  W. 
Va.  709  (1911). 

16.  Buckley  v.  Corse,  Saxt.  (X. 
J.)   504   (1832). 

17.  Mabel  Min.  Co.  v.  Pearson, 
etc.,  Co.,  121  Ala.  567  (1899); 
Wing  V.  Fairhaven,  8  Cush.  (Mass.) 
363  (1851);  Halan  v.  Murfin, 
159  Mich.  605  (1910).  The  disso- 
lution, like  the  granting  of  a  pre- 
liminary injunction,  rests  in  the 
sound  discretion  of  the  court  and 
will  not  be  disturbed  on  appeal 
except  in  clear  cases  of  error  or 
abuse.  Jones  v.  Commercial  Bank, 
5  How.  (Miss.)  43,  35  Am.  Dec. 
419  (1840);  Fleischman  v.  Young, 
9  X.  J.  Eq.  620  (1853);  Salomon 
v.  H^rtz,  40  N.  J.  Eq.  400  (1885); 
Buffington  v.  Harvey,  95  U.  S.  99, 
24  L.  ed.  381   (1877). 


INJUNCTIONS 


757 


tion,^^  at  any  stage  of  the  cause  before  final  hearing.^^ 
The  general  rule  is  that  an  injunction  will  not  be  dis- 
solved upon  motion  without  notice  and  hearing  -^   al- 


ls. The  motion  should  specify 
the  grounds  upon  which  dissolution 
is  sought;  and  if  it  sets  forth  any- 
new  facts  as  a  ground  for  disso- 
lution or  denies  statements  of  the 
bill,  it  should  be  supported  by  affi- 
davit. If  neither  affidavit  nor  an- 
swer are  filed  in  support  of  the 
motion,  the  allegations  of  the  bill 
may  be  taken  as  true.  Baltic  Min. 
Co.  V.  Houghton  C.  J.,  144  N.  W. 
209   (Mich.  1914). 

In  the  Federal  courts  the  motion 
should  if  practicable  be  addressed 
to  the  judge  who  granted  the  in- 
junction. Ide  V.  Crosby,  104  Fed. 
582  (C.  C.  1900);  Westerly  Watel-- 
works  V.  Westerly,  77  Fed.  783  (C. 
C.  1896).  And  so  when  the  state 
practice  requires  the  judge  before 
whom  a  matter  was  begun  to 
carry  it  through  the  later  stages, — 
e.   g.,   Maine. 

19.  Florida.  G.  S.,  Sec.  1917; 
WordehofE  v.  Evers,  18  Fla.  339 
(1881). 

Illinois.  Hurd's  Stat.,  Chap.  69, 
Sec.  15;  J.  &  A.  116175;  Ottawa  v. 
Walker,  21  111.  605   (1859). 

Mississippi.  Jones  v.  Commer- 
cial Bank,  5  How.  43,  35  Am.  Dec. 
419    (1840). 

New  Jersey.  Morris  Canal,  etc., 
Co.  V.  Bidden,  4  N.  J.  Eq.  222 
(1842). 

Pennsylvania.  Brewing  Co.  v. 
Gas.  Co.,  224  Pa.  129  (1909). 

West  Virginia.  White,  etc.. 
Springs  Co.  v.  Robinson,  3  W.  Va. 
542   (1869). 

United  States.  Fenwick  Hall 
Co.  V.  Old  Saybrook,  66  Fed. 
390  (1894). 


The  motion  may  be  made  as  soon 
as  the  defendant  knows  of  the  is- 
suance of  the  injunction  without 
waiting  for  service  of  the  injunc- 
tion or  a  subpoena  on  the  bill. 
Waffle  V.  Vanderheyden,  8  Paige 
(N.  Y.)  45  (1840);  Howe  v.  Wil- 
lard,  40  Vt.  654  (1868);  Shields  v. 
MeClung,  6  W.  Va.  79  (1873). 

By  statute  or  rule  in  some  states 
the  motion  may  be  made  at  any 
time  either  before  or  after  answer. 
Del.  Eq.  Rule  62;  Fla.,  G.  S.,  Sec. 
1917.  In  others,  a  motion  to 
dissolve  before  answer  is  limited 
to  want  of  equity  on  the  face  of 
the  bill.  Illinois,  J.  &  A.  K6175; 
Hurd's  Stat.,  Chap.  69,  Sec.  15; 
New  Jersey  Eq.  Rule  123.  In  Ver- 
mont, Rule  41  provides  that  there 
can  be  no  dissolution  unless  de- 
fendant has  filed  his  answer  ex- 
cept on  grounds  of  insufficiency  of 
the  bill.  In  New  Jersey,  Rule  123 
provides  that  there  can  be  no  mo- 
tion to  dissolve  before  answer  ex- 
cept for  want  of  equity  unless  de- 
fendant shows  cause  why  answer 
is  not  put  in.  In  Freeman  v.  Am- 
nions, 91  Miss.  672  (1908),  a  mo- 
tion to  dissolve  was  held  prema- 
ture, where  filed  before  answer  or 
demurrer. 

20.  Florida.  G.  S.,  See.  1917; 
IMcAdow  V.  Wachob,  45  Fla.  482 
(1903). 

Maryland.  Wood  v.  Bruce,  9 
Gill.  &  J.  215   (1837). 

Mississippi.  Carraway  v.  Ode- 
neal,   56   Miss.   223    (1878). 

New  Jersey.  Manhattan  Mfg. 
Co.  V.  Van  Keuren,  23  N.  J.  Eq. 
251   (1872). 


758 


EQUITY  PRACTICE 


though  there  are  exceptions  to  the  rule.^*^^  Statutes  or 
rules  usually  provide  for  the  length  of  notice  to  be 
given. -^  The  hearing  is  much  the  same  in  nature  as  the 
hearing  in  the  question  of  issuing  an  injunction,  after 
summons  to  show  cause. -^''^  The  motion  to  dissolve  may 
be  supported  by  the  sworn  answer,  when  filed,  and  by 
evidence  on  the  part  of  the  defendant  usually  affidavits, 


Vermont.      Eq.    Rule    41. 

West  Virginia.  Code,  Sec.  4958; 
Fadely  v.  Tomlinson,  41  W.  Va. 
606    (1896). 

20a.  As  where  injunction  was 
granted  contrary  to  statute.  Mar- 
latt  V.  Perrine,  17  X.  J.  Eq.  49 
(1864).  Or  where  face  of  bill 
shows  want  of  equity  and  motion 
is  made  in  open  court.  White 
Sulphur  Springs  Co.  v.  Robinson, 
3  W.  Va.  542  (1869).  Or  where 
motion  is  made  in  term  time  and 
in  open  court.  James  County  v. 
Hamilton  County,  89  Tenn.  237 
(1898);  Kester  v.  Alexander,  47 
W.  Va.  329  (1899). 

21.  Alabama.  Code,  Sec.  4526, — 
in  vacation  on  ten  days'  notice.  Eq. 
Rule  96, — in  term-time,  one  day's 
notice  or  at  call  of  docket  without 
any   notice, 

Illinois.  Hurd's  Stat.,  Chap.  69, 
Sec.  14,  .T.  &  A.  «^  6174— five  days. 

Mississippi.  Code,  Sec.  618, — 
five  days.  In  term  time  motions 
to  dissolve  on  bill  and  answer  may 
be  heard  five  days  after  answer 
filed  on  three  days'  notice. 

Tennessee.  Code,  Sec.  6261, — 
five   days. 

United  States.  Eq.  Rule  73, — 
two  days'  notice  on  motion  to  dis- 
solve  temporary  restraining  order. 

The  notice  should  specify  on 
what  the  motion  is  based.  Tenn. 
Eq.  Rule  6. 

Service   of   notice   is   usuallv   on 


plaintiff's  attorney.  Hiller  v. 
Cotton,   .54   Miss.   551    (1877). 

21a.  Alabama.  Code,  Sec.  4535. 
Although  the  bill,  answer,  and  affi- 
davits are  now  admissible,  for- 
merly affidavits  were  not  admis- 
sible against  a  sworn  answer.  Sal- 
mon V.  Salmon,  60  So.  837  (1913); 
Xelson  V.  Hammonas,  173  Ala.  41 
(1911).  But  the  mere  reduction 
of  the  plaintiff's  testimony  to 
writing  is  not  an  affidavit.  Xelson 
V.  Hammonds,  173  Ala.  41    (1913). 

Delaware.  After  answer,  testi- 
mony on  motion  to  dissolve  shall 
not  be  ex  parte  affidavit,  but  depo- 
sition taken  before  an  examiner. 
Eq.   Rule   64. 

Florida.     G.  S.,  Sec.  1916. 

Illinois.  J.  &  A.  "I*"  6176,  6177, 
6179;  Hurd's  Stat.,  Chap.  69,  Sees. 
16,  17,  19.  But  affidavits  cannot 
be  filed  by  a  defendant  who  has 
failed  to  answer.  Penna.  R.  Co.  v. 
Penna.  R.  Term.  Co.,  252  HI.  73 
(1911). 

Maryland.  The  court  may  pre- 
scribe the  manner  of  taking  out 
the  testimony.  Code,  Art.  16,  Sec. 
79. 

Michigan.  Carroll  v.  Farmers, 
etc.,   Bank,   Har.    197    (1840). 

Mississippi.  Alcorn  v.  Alcorn, 
76  Miss.  907  (1899).  Affidavits 
shall  be  taken  on  two  days '  notice 
of  time  and  place.  Code,  Sec. 
620. 


INJUNCTIONS 


759 


but  sometimes  oral  testimony.  The  plaintiff  may  rely 
both  on  the  evidence  upon  which  he  obtained  his  injunc- 
tion and  on  other  evidence.  An  injunction  is  also  ipso 
facto  dissolved  by  a  dismissal  of  the  bill  --  and  termi- 
nated by  final  decree.-^    It  is  to  be  noted,  however,  that 


New  Jersey.  Where  the  motion 
is  heard  on  affidavits  of  the  de- 
fendant instead  of  his  answer,  the 
plaintiff  may  rebut  these;  affida- 
vits to  be  either  ex  parte  or  taken 
on  notice;  when  the  answer  is  filed, 
the  defendant  must  rely  only  on 
answer  and  annexed  affidavits,  and 
the  plaintiff  can  read  no  new  affi- 
davits except  in  reply  to  new  mat- 
ter in  the  answer  on  which  the  de- 
fendant relies,  these  affidavits  also 
to  be  either  ex  parte  or  taken  after 
notice;  the  court  may  require  any 
affiant  to  testify  orally.  Eq.  Rules 
123, 124a. 

Pennsylvania.  Union,  etc.,  R. 
Co.  V.  Hazelton,  etc.,  R.  Co.,  154 
Pa.    422    (1893). 

Rhode  Island.  Bradford  v. 
Peckham,  9  R.  I.  250   (1869). 

Tennessee.     Code,  Sec.  6261. 

Virginia.  The  defendant  may 
testify  though  his  sworn  answer  is 
used  as  an  affidavit.  Code,  Sec. 
3281. 

West  Virginia.  Affidavits  can- 
not be  used  in  support  of  the  bill 
when  no  answer  is  filed.  Coke  Co. 
V.  C.  &  C.  Co.,  60  W.  Va.  508 
(1906). 

When  answer  has  been  filed,  new 
matter  not  responsive  to  the  bill 
must  be  sustained  by  proof  out- 
side of  the  oath  to  the  answer  it- 
self. Hendricks  v.  Hughes,  117 
Ala.  591  (1898);  Carson  v.  Cole- 
man, 11  N.  J.  E.  106  (1856);  Rich- 
ardson v.  Lightcap,  52  Miss.  508 
(1876);  Luburg's  Appeal,  17  Atl. 
245  (Pa.  1889). 


A  motion  to  continue  a  hearing 
on  motion  to  dissolve  is  only 
granted  when  the  necessity  is  clear. 
Illinois,  J.  &  A.  116178,  Hurd 's 
Stat.,  Chap.  69,  Sec.  18, — granted 
when  plaintiff  shows  he  can  later 
secure  testimony  which  will  dis- 
prove the  answer;  Crane  v.  Davis, 
21  So.  17  (Miss.  1896) ;  Vaught  v. 
Rider,  83  Va.  659  (1887);  Steel- 
smith  V.  Fisher  Oil  Co.,  4  W.  Va. 
391  (1900);  Kester  v.  Alexander, 
47  W.  Va.  329   (1899). 

22.  Green  v.  Pulsford,  2  Beav. 
70;  Thomsen  v.  McCormick,  13S 
111.  135  (1891);  Wagoner  v.  Wagon- 
er, 77  Md.  189  (1893). 

That  the  dismissal  was  without 
prejudice  makes  no  difference. 
Yale  v.  Baum,  70  Miss.  225  (1892). 

But  a  dismissal  for  want  of 
prosecution  does  not  dissolve  a  pre- 
liminary injunction  which  has  been 
perpetuated  by  a  decree  reserving 
other  questions.  Ex  parte  Gist,  119 
Ala.  463   (1898). 

Where  bill  is  ancillary  to  a  suit 
in  ejectment,  verdict  for  the  de- 
fendant in  the  suit  dissolves  the 
injunction.  King  v.  Williamson, 
80  Fed.  170,  25  C.  C.  A.  355  (1897); 
King  v.  Buskirk,  78  Fed.  233,  24 
C.   C.   A.   82    (1897). 

23.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1679;  Sweeney  v.  Hanley,  126 
Fed.  97,  61  C.  C.  A.  153  (1903). 
Hence  if  restraint  is  desired  there- 
after, it  must  be  expressly  pro- 
vided for  in  the  final  decree.  Ibid.; 
People  V.  Randall,  73  N.  Y.  416. 

A    temporary    restraining    order 


760 


EQUITY  PRACTICE 


where  an  injunction  has  been  obtained  on  summons  to 
show  cause  and  hearing  thereon,  the  defendant  cannot 
afterwards  move  to  dissolve  except  upon  new  grounds 
not  available  at  such  hearing.^^  Where  an  injunction 
has  been  granted  against  several  defendants,  the  injunc- 
tion will  only  be  dissolved  ordinarily  as  to  those  who 
apply  therefor.^^ 

§  467.  Grounds  of  dissolution.  In  general  it  may  be 
stated  that  wherever  an  injunction  has  been  improperly 
granted  by  mistake  or  error  on  the  part  of  the  court,  the 
defendant  may  obtain  its  dissolution.^^  An  injunction 
may  also  be  dissolved  upon  any  of  the  following  special 
grounds:  want  of  jurisdiction;  ^"  want  of  necessary  party 


expires  by  its  terms  upon  the  re- 
fusal of  the  application  for  a  pre- 
liminary injunction  without  any 
formal  order  dissolving  it.  Cen- 
tral R.  R.  Co.  V.  Standard  Oil  Co., 
33  N.  J.  Eq.  372   (1881). 

The  reversal  of  a  decree  making 
a  temporary  injunction  permanent, 
on  the'  ground  that  the  plaintiff 
was  not  entitleil  to  an  injunction, 
dissolves  the  injunction.  Gage  v. 
Parker,   178   111.  455    (1899). 

Generally  an  injunction  is  not 
dissolved  until  bill  is  dismissed  or 
injunction  formally  dissolved.  At- 
kinson V.  Socket,  36  W.  Va.  438 
(1892).  But  the  parties  may  orally 
agree  to  treat  the  injunction  as  dis- 
solved. Courtland,  etc.,  Co.  v. 
Shields,  56  S.  W.  278  (Tenn.  Ch. 
App.    1899). 

See  Chapter  XXVIIT,  "Ap- 
peals," Sec.  509,  post,  p.  846,  as  to 
whether  appeals  dissolve  temporary 
injunctions. 

24.  Alabama  Code,  Sees.  4529, 
4532,  4533;  Sinnickson  v.  John- 
son, 3  N.  J.  Eq.  374   (1835). 

25.  Bramwell  v.  Halcomb,  3  M. 


&  C.  737.     But  compare  Macgregor 
v.    Cunningham,    16    Sim.    365. 

An  injunction  may  however  be 
dissolved  as  to  all  defendants 
where  only  one  has  answered,  but 
his  answer  disposes  of  the  plain- 
tiff's case.  Garrett  v.  Lynch,  '44 
Ala.  683  (1870);  School  Commrs. 
V.  Putnam,  44  Ala;  506  (1870).  See 
also  Hayzlett  v.  McMillan,  11  W. 
Va.  464  (1877). 

26.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1678;  Lake  Shore  R.  Co.  v.  Tay- 
lor, 134  111.  603  (1890);  Wing  v. 
Fairhaven,  8  Cush.  363  (1851); 
Collings  V.  Camden,  27  N.  J.  Eq. 
293  (1876). 

So  also  where  there  has  been 
fraud  or  misrepresentation  of  fact. 
Mossman  v.  Thorson,  118  111.  App. 
574  (1905);  Tifel  v.  Jankins,  95 
Md.  655  (1902);  Endicott  v. 
Mathis,  9  N.  J.  E.  110  (1852); 
Black  V.  Higgins,  2  Tenn.  Ch.  780 
(1877). 

27.  York  v.  Kile,  67  111.  233 
(1873);  Norfolk  R.  Co.  v.  Postal 
Tel.  Co.,  88  Va.  932,  936  (1892); 
Ruggles  V.  Simonton,  3  Biss.  325, 
F.  C.  12,120  (C.  C.  1872). 


INJUNCTIONS 


761 


plaintiff;  ^s  laches  in  prosecution;  -^  want  of  notice,  when 
notice  is  required;  ^^  insufficiency  of  bond;  ^^  uncertainty 
of  injunction;  2-  non-compliance  by  plaintiff  with  terms 
of  injunction;  ^^  where  the  further  continuance  of  an  in- 


28.  Att'y  Gen.  v.  Marsh,  16  Sim. 
572;  Freeman  v.  Lee  County,  66 
Miss.  (1888);  Morgan  v.  Eose,  22 
N.  J.  Eq.  583  (1871).  But  in  case 
of  want  of  a  necessary  party  de- 
fendant, the  bill  may  be  amended 
without  prejudice  to  the  injunc- 
tion. Irick  V.  Black,  17  N.  J.  Eq. 
189  (186-4);  Morgan  v.  Rose,  22 
N.  J.  Eq.  583  (1871).  See  Eldred 
V.  American,  etc..  Car  Co.,  105  Fed. 
457,  44  C.  C.  A.  554  (1900),  where 
the  plaintiff  was  unable  effectually 
to  amend  because  the  court  could 
not  get  jurisdiction  over  a  neces- 
sary party  which  was  absent. 

29.  Delaware.  Eussell  v.  Stick- 
ley,  4  Del.  Chan.  567   (1872). 

Illinois.  Classen  v.  Danforth,  56 
111.  App.  552   (1894). 

New  Jersey.  Gibbs  v.  Ward, 
48  Atl.  243  (1901);  Hoagland  v. 
Titus,   14  N.  J.  Eq.   81    (1861). 

Pennsylvania.  Butler  v.  Egge, 
170  Pa.  239   (1895). 

Virginia.  Mottey  v.  Frank,  87 
Va.    432    (1891). 

Vermont.  Howe  v.  Willard,  40 
Vt.   654    (1867). 

In  Pennsylvania  an  injunction 
obtained  ex  parte  is  dissolved  if 
not  argued  within  five  days  after 
notice  given.  Eq.  R.  82.  In  New 
Jersey,  unless  notice  is  duly  served 
and  returned,  unless  court  extends 
the  time.  Allman  v.  United  Broth- 
erhood, 79  N.  J.  E.  641  (1913), 
affg.  79  N.  J.  E.  150  (1911);  Eq. 
Rule  130.  In  Massachusetts  and 
Vermont  unless  the  party  obtain- 
ing a  restraining  order  proceeds 
with  his  application  for  injunction 


on  the  date  set  for  hearing.  Mass. 
Acts  of  1913,  Chaps.  515,  840;  Vt. 
Eq.  Rule  40  (as  amended,  1913). 
In  Mississippi  where  an  injunc- 
tion issues  in  vacation,  the  bill 
may  be  docketed  forthwith  on  ap- 
plication of  the  defendant,  and  in- 
junction dissolved  unless  cause 
shown.     Code,  Sec.   614. 

30.  Hoonaman  v.  Bedesseren,  63 
111.  App.  353  (1896);  Kattaning 
Brewing  Co.  v.  American,  etc..  Gas 
Co.,  224  Pa.  128  (1909);  Marsh  v. 
Bennett,  5  McLean  (U.  S.)  117 
(1850). 

31.  Farni  v.  Tesson,  51  111.  393 
(1869);  Martin  v.  Murphy,  103  N. 
E.  930  (Mass.  1914);  Jenkins  v. 
Wilde,  2  Paige  (N.  Y.)  394  (1830). 
According  to  the  weight  of  author- 
ity, however,  the  court  will  not  dis- 
solve it  unconditionally,  in  such 
case,  but  will  give  the  plaintiff  an 
opportunity  to  remedy  the  defect. 
Jones  V.  Ewing,  56  Ala.  360 
(1876);  Beauchamp  v.  Kankakee 
County,  45  111.  274  (1867);  New  v. 
Wright,  44  Miss.  202  (1870);  Phil- 
lips V.  Pullen,  45  N.  J.  Eq.  157 
(1889);  Skinner  v.  Dayton,  2 
Johns.  Ch.  (N.  Y.)  226  (1816); 
Beebe  v.  Coleman,  8  Paige  (N.  Y.) 
392   (1840). 

So  where  further  security  is  not 
given  as  ordered.  New  Jersey, 
Comp.  St.,  "Chancery,"  Sec.  66. 

In  Virginia  bond  must  be  filed 
within  sixty  days  or  injunction  or- 
der expires.     Code,  Sec.   3442. 

32.  Rose  V.  Rose,  11  Paige  (N. 
Y.)    166   (1899). 

33.  Clayton     v.     Shoemaker,     67 


762 


EQUITY  PRACTICE 


junction  would  be  useless;-'^  want  of  eqnity  in  the  bill 
and  denials  in  the  answer.  The  two  last  grounds  will 
require  more  particular  consideration. 

§  468.  Dissolution  for  want  of  equity  in  the  bill.  An 
injunction  will  be  dissolved  upon  motion  where  the  bill 
on  its  face  does  not  show  any  grounds  for  equitable  in- 
terference by  injunction  or  in  other  words,  for  want  of 
equity  in  the  bill.^-^  When  a  motion  to  dissolve  is  made 
upon  such  ground,  all  facts  well  pleaded  in  the  bill  are 
to  be  taken  as  true  just  as  upon  demurrer,^*'  new  matters, 


Md.  216  (1887);  Morris  Canal,  etc., 
Co.  V.  Bartlett,  3  N.  J.  Eq.  9 
(1834);  Livingston  v.  Kane,  3 
Johns.  Ch.   (N.  Y.)   224   (1818). 

34.  As  where  the  grounds  upon 
which  it  was  originally  granted  no 
longer  exist.  Steiner  v.  Scholze, 
105  Ala.  607  (1894).  Or  where 
subsequent  events  would  render  its 
continuance  useless.  Phelps  v. 
Foster,  18  111.  309  (1856);  Fulton 
v..  Greacen,  44  N.  J.  Eq.  443 
(1888);  Hostler  v.  Marlowe,  44  W. 
Va.  707  (1898);  Hanley  v.  Ean- 
dolph  County  Court,  50  W.  Va. 
439  (1901).  So  where  a  statute 
was  enacted  after  the  issuance  of 
an  injunction  authorizing  the  acts 
enjoined.  Baird  v.  Shore  Line  E. 
Co.,  6  Blatchf.  (U.  S.)  461.  So 
where  acts  were  accomplished  be- 
fore notice  of  injunction.  Dixon  v. 
Greene  Co.,  76  Miss.  794   (1899). 

35.  Alabama.  Equity  Rule  96; 
Morrison  v.  Coleman,  87  Ala.  655, 
.3  L.  R.  A.  384  (1888). 

Florida.  Godwin  v.  Phifer,  51 
Fla.  441   (1906). 

Illinois.  Fahs  v.  Roberts,  54 
111.   192   (1870). 

Maryland.  Syfer  v.  Spence,  103 
Md.   66   (1906). 

New  Jersey.  Smith  v.  Kuhl,  25 
N.  J.  Eq.   38    (1874). 


Tennessee.     Code,  Sees.  6261-2. 

Vermont.     Eq.  Rule  41. 

Virginia.  Hudson  v.  Kline,  9 
Gratt.   379    (1852). 

West  Virginia.  Fuel  Co.  v.  Hol- 
laudsworth,  64  W.  Va.  127   (1908). 

This  may  be  done  either  before 
answer.  Reynolds  v.  Mitchell,  1 
111.  177  (1826);  Heck  v.  Vollmer, 
29  Md.  507  (1868);  Metro.  Grain 
Exch.  V.  Tel.  Co.,  11  Biss.  (U.  S.) 
531  (1883).  Or  after  answer.  Wil- 
liams V.  Berry,  3  Stew.  &  Port. 
(Ala.)  284  (Ala.  1833);  Wing  v. 
Fairhaven,  8  Cush.  (Mass.)  363 
(1851);  Quackenbush  v.  A^'an  Rip- 
per, 1  N.  ,1.  Eq.  476  (1831). 

In  Alabama,  motion  to  dissolve 
and  demurrer  must  be  heard  at  the 
same  time,  if  motion  is  made  in 
term  time,  but  on  a  motion  to  dis- 
solve the  court  can  (of  course) 
consider  the  equity  of  the  bill  even 
though  no  demurrer  has  been  filed. 
Eq.   Rule   96. 

36.  Illinois.  Smith  v.  Kocher- 
sperger,  173  111.  201  (1898);  Ben- 
nett v.  McFadden,  61  111.  334 
(1871). 

Mississippi.  Terry  v.  Hageman, 
59  So.  75  (Miss.  1912). 

New  Jersey.  Oakley  v.  Pound, 
14  N.  J.   Eq.   178    (1862). 


INJUNCTIONS 


763 


if  any,  in  the  answer  being  disregarded;  but  mere  tech- 
nical errors  and  amendable  defects  will  be  disregarded, 
the  only  question  being  whether  the  bill  is  sufficient  in 
substance.^^ 

§  469.  Dissolution  upon  denials  of  answer.  It  is  a  well 
established  rule  of  general  chancery  practice  that  where 
the  defendant  files  an  answer  under  oath  ^^  positivelj'' 
denying  every  material  allegation  of  the  plaintiff's  bill,^^ 

Alabama.  Forney  v.  Calhoun 
County,  84  Ala.  215  (1887); 
Wright  V.  Philiips,  56  Ala.  69 
(1876);  Calhoun  v.  Cozens,  3  Ala. 
498   (1841). 

Delaware.  Maclary  v.  Regner,  3 
Del.  Ch.  445  (1870);  Plunkett  v. 
Dillon,  3  Del.  Ch.  496  (1871). 

Florida.  Hayden  v.  Thrasher, 
20  Fla.  715   (1884). 

Maryland.  Gelston  v.  Rullman, 
15  Md.  260  (1859);  Cromise  v. 
Clark,  4  Md.  Ch.  403   (1853). 

IVEichigan.  Atty.  Gen.  v.  Oak- 
land, etc..  Bank,  1  Walk.  Ch.  90 
(1842). 

Mississippi.  Coleman  v.  Hud- 
spath,  49  Miss.  562  (1873);  Miller 
V.  McDougall,  44  Miss.  682 
(1870). 

New  Hampshire.  Hollister  v. 
Barkley,  9  N.  H.  230  (1838). 

New  Jersey.  Scott  v.  Hartman, 
26  N.  J.  E.  89  (1875);  Gibby  v. 
Hall,  27  N.  J.  E.  282  (1876); 
Irick  V.  Black,  17  N.  J.  E.  190 
(1864). 

Tennessee.  Yale  v.  Moore,  3 
Tenn.  Ch.  76   (1875). 

Virginia.  Hughes  v.  Tinsley,  80 
Va.   259    (1885). 

West  Virginia.  Mason  City, 
etc.,  Co.  V.  Mason,  23  W.  Va.  211 
(1883). 

United  States.  Ford  v.  Taylor, 
140  Fed.   356   (C.  C.   1905). 

The    injunction    will    not   be    dis- 


Virginia.  Peatross  v.  McLaugh- 
lin, 6  Gratt.  64  (1849). 

West  Virginia.  Coke  Co.  v. 
Coal,  etc.,  Co.,  60  W.  Va.  508,  10 
L.  R.  A.   (N.  S.)   268   (1906). 

37.  Jones  v.  Ewing,  56  Ala.  360 
(1876);  Frome  v.  Freeholders,  33 
N.  J.  Eq.  464   (1881). 

38.  The  answer  must  be  verified 
by  oath  in  order  to  obtain  a  disso- 
lution of  the  injunction.  Gray  v. 
MeCance,  11  HI.  325  (1849);  Man- 
hattan Mfg.  Co.  V.  Stock  Yard  Co., 
23  N.  J,  Eq.  161  (1872);  Fulton 
Bank  v.  Canal  Co.,  1  Paige  (N.  Y.) 
311   (1829). 

Though  a  corporation  usually  an- 
swers under  seal  and  without  oath 
yet  an  injunction  will  not  be  dis- 
solved upon  the  answer  of  a  corpo- 
ration unless  verified  by  the  oath 
of  an  officer  of  the  corporation  or 
some  person  having  knowledge  of 
the  facts.  Fulton  Bank  v.  Canal 
Co.,  1  Paige  (N.  Y.)  311  (1829); 
Union  Bank  v.  Geary,  5  Pet.  Ill 
(1831). 

39.  The  denials  in  the  answer 
must  be  positive,  clear,  precise,  un- 
evasive,  unargumentative;  must 
state  facts,  not  conclusions,  an3 
must  not  be  made  upon  informa- 
tion and  belief;  otherwise  the  al- 
legations of  the  bill  upon  which 
the  injunction  was  originally 
granted  will  prevail,  and  dissolu- 
tion be  refused. 


764 


EQUITY  PRACTICE 


the  court  will  usually  in  its  discretion  *^  dissolve  the 
injunction  upon  the  strength  of  such  denials  alone.^^ 
This  is  true  even  where  answer  under  oath  was  expressly 
waived  in  the  bill.^^^    There  is  one  important  exception 


solved  on  the  basis  merely  of  new 
matter  set  up  in  the  answer. 
Francis  v.  Gilreath,  etc.,  Co.,  60 
So.   919    (Miss.    1913). 

40.  Alabama.  Royal  v.*  Royal, 
167   Ala.  .510   (1910;. 

Florida.  Carter  v.  Bennett,  6 
Fia.   214    (1855). 

Mississippi.  Bowen  v.  Hoskins, 
45  Miss.  183,  7  Am.  Rep.  728 
(1871). 

New  HampsMre.  Hollister  v. 
Barkley,  9  N.  H.  230  (1838). 

New  Jersey.  Mulock  v.  Mulock, 
26  X.  ,J.  Eq.  461  (1875);  SuyJer 
V.  Peckham,  41  N.  J.  Eq.  405 
(1886). 

Virginia.  Jenkins  v.  Waller,  80 
Va.   668    (1885). 

West  Virginia.  McEklowney  v. 
Lowther,  49  W.  Va.  348  (1901). 

41.  Alabama.  Long  v.  Shep- 
herd, 159  Ala.  595  (1909);  Webster 
V.  Debardeleben,  147  Ala.  280 
(1906). 

Florida.  Gillespie  v.  Chapline, 
59  Fla.  500  (1910);  Robbins  v. 
White,  52  Fla.  673  (1906). 

Illinois.  Parkman  v.  Trousdale, 
4   111.  367   (1842). 

Maryland.  Wenzel  v.  Millbury, 
93    M(l.   427    (1901). 

Michigan.  Chicago,  etc.,  Co.  v. 
Kalamazoo  C.  J.,  138  Mich.  246 
(1904);  Caulfield  v.  Curry,  63  Mich. 
594  (1886). 

Mississippi.  Davis  v.  Hart,  66 
Miss.  642    (1889). 

New  Hampshire.  Hollister  v. 
Barkley.  9  X.  H.  230  (18.38). 

New  Jersey.  Campbell  v.  Run- 
yon,  42  X.  J.  E.  483  (1887). 


Tennessee.     See  Code,  Sec.  6261. 

Virginia.  Motley  v.  Frank,  87 
Va.   432    (1891). 

West  Virginia.  Meyer  v.  Meyer, 
60  W.    Va.  473    (1906). 

United  States.  Fprd  v.  Taylor, 
140  Fed.  356  (C.  C.  1905);  McLean 
v.  Mayo,  113  Fed.  106  (D.  C.  1901). 

41a.  Delaware.     Eq.  Rules  23,  63. 

Maryland.  Code,  Art.  16,  Sec. 
169;  Eq.  Rule  27;  Gelston  v.  Rull- 
nian,  15  Md.  260   (1859). 

New  Jersey.  Comp.  St.,  "Chan- 
eery,"  See.  19;  Ireland  v.  Kelly, 
60  X.  J.  E.  308   (1900). 

Tennessee.     Eq.  Rule  6.     ' 

Vermont.     Eq.  Rule  8. 

Virginia.     Code,  Sec.  3281. 

It  has  even  been  held  that  the 
court  may  treat  it  as  if  verified, 
especially  where  sustaining  affi- 
davits are  filed.  Kidd  v.  Bates, 
124  Ala.  670  (1899);  Lockhart  v. 
Fray,  48  Ala.  579  (1872);  Free- 
port  V.  Goddard,  103  111.  App.  36 
(1902);  Ingles  v.  Straus,  91  Va. 
209.  But  see  Little  v.  Hamlin,  27 
So.  528   (Miss.  1900). 

Under  the  rules  and  statutes 
mentioned  above,  Chap.  XIII,  note 
44,  ante,  p.  494,  to  the  effect  that 
where  sworn  answer  is  waived,  a 
sworn  answer  has  no  effect  as  evi- 
dence, there  would  seem  to  be  a 
distinction  between  having  no  ef- 
fect as  evidence  and  having  ef- 
fect sufficient  to  obtain  a  dissolu- 
tion upon  answer  without  evidence 
strictly  speaking.  See  Lockhart  v. 
Tray,  48  Ala.  579  (1872),  and  the 
express  provisions  of  some  of  the 
rules  and  statutes  there  cited,  to 
this  effect. 


INJUNCTIONS 


765 


to  be  noted,  however,  to  the  general  rule,  viz. :  that  where 
the  injunction  was  granted  upon  summons  to  show 
cause,  evidence  and  hearing  thereon,  such  injunction  will 
not  be  dissolved  upon  the  denials  of  an  answer.^-  Where 
there  are  several  defendants,  a  motion  to  dissolve  will 
not  be  entertained  until  they  have  all  answered  "*^  or  at 
least  all  those  upon  whom  the  gravamen  of  the  charge 
rests.^^  The  filing  of  exceptions  to  the  answer  will  not 
prevent  the  hearing  of  a  motion  to  dissolve,  but  the 
court  will  upon  the  hearing  of  such  motion  give  the  ex- 
ceptions the  weight  to  which  they  are  properly  entitled, 
often  hearing  exceptions  and  motion  together.^^  If  in 
spite  of  exceptions  it  appears  that  the  equity  of  the  bill 
has  been  fully  answered,  as  far  as  it  affects  the  injunc- 
tion, the  injunction  will  be  dissolved."*^* 


42.  Sinnickson  v.  Johnson,  3  N. 
J.  Eq.  374  (1835). 

Other  exceptions  to  the  general 
rule  are  the  following.  Where  the 
main  charge  of  the  bill  is  fraud. 
Mulock  V.  Mulock,  26  N.  J.  E.  461 
(1875).  Where  the  bill  sets  up  a 
written  instrument,  the  plaintiff's 
construction  of  which  is  denied  by 
the  answer.  Morris  Canal  Co.  v. 
Matthieson,  17  N.  J.  E.  385  (1866). 
Wl  ere  the  dissolution  might  lead 
to  irreparable  injury.  Harrison  v. 
Yerbey,  87  Ala.  185  (1888);  Hol- 
lister  V.  Barkley,  9  N.  H.  230 
(1838);  Pope  v.  Bell,  35  N.  J.  E.  1 
(1882);  Owen  v.  Brien,  2  Tenn. 
Ch.  295  (1875);  Kahn  v.  Kerngood, 
80  Va.  342   (1885). 

43.  Smith  v.  Loomis,  5  N.  J.  Eq. 
60  (1845);  Noble  v.  Wilson,  1 
Paige  (N.  Y.)  164  (1828). 

44.  Joseph  V.  Doubleday,  1  Ves. 
&  B.  497;  Heck  v.  Vollmer,  29 
Md.  507  (1868);  Adams  v.  Bank, 
10  N.  J.  Eq.  535  (1856);  Depeyster 
V.  Graves,  2  Johns.  Ch.  (N.  Y.)  148 
(1816). 


There  is  no  need  to  await  the 
answer  of  defendants  out  of  the 
jurisdiction  who  cannot  be  com- 
pelled to  answer.  Baltimore,  etc., 
E.  Co.  V.  Wheeling,  13  Gratt  (Va.), 
40  (1855).  The  rule  also  does 
not  apply  where  plaintiff  has  taken 
no  steps  to  compel  an  answer  from 
the  rest.  Stoutenburg  v.  Peck,  4 
N.  J.  Eq.  446  (1844). 

45.  Alabama.    Eq.  Rule  96. 

Delaware.     Eq.  Rule  62. 

Maryland.  Keghler  v.  Salage, 
12  Md.  383,  71  Am.  Dec.  600 
(1858). 

New  Jersey.  Wyckoff  v.  Coch- 
ran, 4  N.  ,J.  E.  420  (1844). 

Rhode  Island.  Bradford  v.  Peck- 
ham,  9  R.  I.  250   (1869). 

Virginia.  B.  &  O.  R.  Co.  v. 
Wheeling,   13   Gratt.  40    (1855). 

West  Virginia.  Sandusky  v. 
Paris,  49  W.  Va.  150   (1901). 

45a.  Alabama.     Eq.  Rule  98. 

Florida.  Indian  River  Steamboat 
Co.  V.  East  Coast  Transportation 
Co.,  28  Fla.  387,  29  Am.  St.  Rep. 
258    (1891). 


766 


EQUITY  PRACTICE 


§  470.  Partial  dissolution,  modification,  and  reinstate- 
ment. The  court  has  the  power  to  dissolve  an  injunction 
in  part  or  to  modify  it  so  as  to  do  more  exact  justice  to 
both  parties,  vrhenever  it  appears  that  its  continuance  in 
its  original  scope  would  not  be  equitable  or  proper.^*^  So 
the  court  may  on  request  of  the  plaintiff  enlarge  ^"  an 
injunction  where  sufficient  grounds  are  shown  therefor, 
or  suspend  it  temporarily.^^  The  court  also  has  the 
power  at  any  time  before  the  termination  of  the  suit  to 
reinstate  an  injunction  which  has  expired,^*^  or  whieli 


Mississippi.  O'Connor  v.  Starke, 
59  Miss.  4S1   (1S82). 

New  Jersey.  Stilt  v.  Hilton,  31 
X.  n.  Eq.  285   (1871).^ 

West  Virginia.  Sandusky  v. 
Faris,  49  W.  A'a.  150  (1901). 

The  English  rule  requiring  the 
exceptions  to  be  disposed  of  be- 
fore a  motion  to  dissolve  could  be 
made  (Dan.  Ch.  Pr.,  6th  Am.  ed., 
p.  1181;  Joseph  v.  Doubleday,.  1 
Ves.  &  B.  497)  prevails  in  some 
states  in  this  country,  except 
■where  the  court  is  of  the  opinion 
that  the  matter  of  exceptions 
would  not  affect  the  motion.  Miss. 
Code,  Sec.  619;  Tenn.  Code,  Sec. 
6263;  Eq.  Eule  6. 

46:  Delaware.  Plunkett  v.  Dil- 
lon, 3  Del.   Ch.  496   (1871). 

Maryland.  ^Meyer  v.  Devries, 
64   Md.   532    (1885). 

Michigan.  Erin  Tp.  v.  Detroit, 
etc.,  K.  Co.  115  Mich.  465  (1898); 
Detroit,  etc..  Plank  Road  Co.  v. 
Macomb  Cir.  Judge,, 109  Mich.  371 
(1896). 

Mississippi.  Hill  v.  Billingsly, 
53  Miss.   Ill   (1876). 

New  Jersey.  Delaware,  etc.,  R. 
Co.  V.  BVeckenridge,  55  N.  J.  Eq. 
159    (1890). 

Pennsylvania.  Keogh  v.  Pitts- 
ton,  etc.,  R.  Co.,  195  Pa.  131  (1900). 


United  States.  Be  Arkansas  R. 
E.  Rates,  168  Fed.  720  (C.  C.  1909) ; 
Denver,  etc.,  E.  Co.  v.  United 
States,  124  Fed.  156,  59  C.  C.  A: 
579    (1903). 

As  a  condition  to  modifying  an 
injunction,  defendant  may  be  re- 
quired to  give  a  proper  indemnity 
bond.  Campbell  v.  Point  Pleasant, 
etc.,  R.  Co.,  23  W.  Va.  448  (1884). 

Such  modification  may  be  on 
motion  to  dissolve.  Xeale  v.  Wood 
County  Ct.,  43  W.  Va.  90  (1897). 

On  modifying  the  injunction  the 
court  may  require  the  defendant 
to  file  a  proper  bond.  Campbell 
V.  Point  Pleasant,  etc.,  E.  Co.,  23 
W.  Va.  448  (1884).  And  see  also 
Alabama  Code,  Sec.  4525;  Tennes- 
see Code,  Sec.  6265;  Vermont  P.  S., 
Sec.   1286;   Eq.  Rule   127. 

47.  Shreve  v.  Voorhees,  3  N.  J. 
Eq.  25,  36  (1834);  Parkhurst  v. 
Kinsman,  2  Blatchf.   78   (1848). 

In  Virginia  a  person  having  au 
injunction  effective  for  a  limited 
time  only  by  its  terms,  may  within 
such  time  on  notice  move  to  en- 
large the  injunction  or  grant  a 
further  injunction.  Code,  Sec. 
3435A. 

48.  Mich.  Land,  etc.,  Co.  v. 
Cleveland  Saw  Mill,  etc.,  Co.,  109 
Mich.  164  (1896);  Edison  El.  Light 


INJUNCTIONS 


767 


has  been  erroneously  dissolved  ^^  upon  a  proper  showing 
of  new  facts  or  other  sufficient  cause.^^ 

§  471.  Discharge  of  injunctions.  There  is  a  distinction 
established  by  some  authorities  between  a  dissolution 
and  a  discharge  of  an  injunction.  The  injunction  is  said 
to  be  dissolved  for  want  of  equity  in  the  bill  and  dis- 
charged for  irregularities  in  the  writ  or  its  issuance.^^. 
Such  irregularities,  it  is  held,  can  only  be  taken  advan- 
tage of  by  motion  to  discharge  and  are  waived  by  a  mo- 
tion to  dissolve  or  any  other  act  is  recognition  of  the 
regularity  of  the  writ," 

§472.  Perpetual  injunctions.    As   stated  above,  per- 
petual injunctions  are  those  which  are  rendered  upon 


Co.  V.  El.  Lighting  Co.,  59  Fed.  501 
(1893). 

49.  Parker  v.  Maryland,  12 
Wheat.  561    (1827). 

50.  Blount  V.  Tomlin,  26  111.  531 
(1862);  State  v.  E.  Co.,  18  Md. 
218  (1862);  Price  v.  Browning,  4 
Gratt.  (Va.)  68;  Staley  v.  Big 
Sandy,  etc.,  E.  Co.,  59  S.  E.  546 
(W.  Va.  1907).  Such  reinstate- 
ment may  be  made  on  a  rehearing 
of  the  order  of  dissolution.  Peck 
V.  Spenser,  26  Fla.  23  (1890). 
Plaintiff  is  not  entitled  to  rein- 
statement in  case  dissolution  is  on 
full  hearing  and  consideration. 
Heck  V.  Vollman,  29  Md.  507 
(1868);  or  where  no  new  ground 
for  injunction  can  be  shown. 
Lowry  v.  McGee,  5  Yerg.  (Tenn.) 
238   (1833). 

A  motion  to  reinstate  an  injunc- 
tion once  dissolved  is  equivalent 
to  a  motion  for  an  injunction  after 
bill  and  answer  filed.  State  v.  E. 
Co.,  18  Md.  218   (1862). 

As  to  reinstatement  of  injunc- 
tion on  appeal,  see  Alabama  Code, 
Sec.   4536,   Equity    Eules    86,    100; 


Fredenheim    v.    Eohr,   87    Va.    764 
(1891). 

51.  France  v.  France,  8  N.  J.  Eq. 
619  (1852);  Fanning  v.  Dunham,  4 
Johns.  Ch.  (N.  Y.)  35  (1819);  Gal- 
laher  v.  Moundsville,  34  W.  Va. 
730   (1891). 

52.  High  on  Inj.  §  1615;  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1687,  n. 
4;  Beach's  Mod.  Eq.  Pr.  §775; 
Jones  v.  Ewing,  56  Ala.  362 
(1876);  Ex  parte  Sayre,  95  Ala. 
288;  Woodward  v.  State,  173  Ala. 
7  (1911). 

53.  East  E.  Co.  v.  E.  Co.,  75  Ala. 
275  (1883);  Forney  v.  Calhoun 
County,  84  Ala._  215  (1887);  Beau- 
champ  V.  Kankakee  Co.,  45  111.  274 
(1867);  Conover  v.  Euckman,  32 
N.  J.  Eq.  685  (1880);  Vermilya  v. 
Christie,  4  Sandf.  Ch,  (N.  Y.)  376 
(1846). 

Under  Alabama  Code,  Sec.  4526, 
authorizing  motion  to  discharge 
and  to  dissolve  to  be  heard  at  the 
same  time,  a  motion  to  dissolve 
does  not  waive  the  right  to  move 
to  discharge.  Woodward  v.  State, 
173  Ala.  7   (1911). 


768  EQUITY  PKACTICE 

final  decree  in  the  cause  after  the  hearing  upon  the 
merits,  perpetually  restraining  the  defendant  from  doing 
a  certain  act.  A  perpetual  injunction  cannot  be  issued 
except  upon  the  final  hearing  ^'^  and  when  so  rendered  it 
continues  in  force  notwithstanding  some  of  the  parties 
to  the  suit  have  died.^^  A  perpetual  injunction  may  be 
granted  either  in  perpetuation  of  a  preliminary  injunc- 
tion or  may  be  issued  upon  final  decree  in  the  first  in- 
stance without  the  existence  of  a  preliminary  injunction, 
and  as  has  been  seen,  without  a  previous  application  there- 
for either  in  the  prayer  of  the  bill  or  otherwise,  when 
necessary  in  order  to  effect  complete  justice/''''  The  pre- 
liminary injunction,  in  the  absence  of  any  provision  to 
the  contrary,  is  tenninated  by  the  final  decree;  and  there- 
fore if  it  is  desired  to  continue  it  in  force,  it  must  be 
expressly  peipetuated  therein.-^"  The  permanent  injunc- 
tion, however,  may  be  and  often  is  very  different  from 
the  preliminaiw  injunction.  As  in  the  case  of  a  prelim- 
inary' injunction,  the  issuing  of  a  perjDetual  injunction 
may  always  be  accompanied  by  the  imposition  of  terms.*'^* 
It  is  proper  ground  for  refusing  a  perpetual  injunc- 

54.  Day  v.  Snee,  3  V.  &  B.  170;  solve  a  preliminary  injunction  is 
Penn,  K.  Co.  v.  E.  Co.,  53  N.  J.  not  res  judicata  of  the  parties' 
Eq.  178  (1895);  Porter  v.  U.  S.,  2  rights  to  an  injunction  by  final 
Paine  (U.  S.)  313  (1834).  hearing.     Staley   v.   Big  Sandy   E. 

A  final  injunction  should  not  be  L.    &    G.    R.    Co.,    63    W.    Va.    119 

issued    merely    upon    overruling    a  (1907). 

demurrer    where  it     is    not    found  57.  Dan.   Ch.  Pr.    (6th  Am.  ed.), 

that  the   demurrer   was   interposed  p.    1679;    Gage   v.   Parker,   178   111. 

for    delay.      Didier    v.    Merryman,  455   (1889). 

114  Md.  434  (1911).     Xor  upon  de-  An    injunction    cannot    be    made 

nying  a  motion  to  dissolve  the  pre-  permanent   in  part   and  temporary 

liminary     injunction.     Wilmer     v.  in    part.      Hanson   v.   Ralston,    168 

Picka,  85  Atl.  77  (Md.  1913).  111.  App.  163  (1912). 

55.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  58.  Maclary  v.  Reznor,  3  Del.  Ch. 
pp.  1680,  1683;  Justice  v.  Mc-  445  (1870);  Sternberg  v.  Wolff,  56 
Broom,  1  Lea  (Tenn.)   555   (1878).  X.  J.  E.  389,  39  L.   R.  A.   762,  67 

56.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  Am.  St.  Rep.  494  (1898);  Bennett 
pp.  1681-2.  V.  Preston,  59  W.  Va.  681   (1906). 

The  granting  of  a  motion  to  dis- 


INJUNCTIONS 


769 


tion  that  after  filing  the  bill,  events  have  occurred  which 
render  an  injunction  unnecessary  or  ineffectual.^'' 

It  is  not  customary  to  require  a  bond  upon  granting  a 
perpetual  injunction  after  final  hearing.*^°  In  granting 
or  refusing  a  perpetual  injunction,  the  court  in  pursuance 
of  the  well  known  principle  of  equity  procedure,  in  order 
to  effect  complete  justice,  will  under  the  general  prayer, 
as  incidental  to  the  main  relief,  award  damages  to  the 
plaintiff  for  any  injuries  that  he  may  have  received  at 
the  hands  of  the  defendant.**^  Where  a  perpetual  injunc- 
tion has  been  decreed,  the  writ  may  be  issued  and  served 
upon  the  defendant  if  desired,  but  it  is  not  indispensable, 
since  the  service  of  the  bill  in  the  first  instance  is  suffi- 


59.  Lanahan  v.  Graham,  37  Md. 
105  (1872);  People  v.  Grand 
Eapids  Road  Co.,  167  Mich.  5 
(1911);  Yoeona  Mills  v.  Gibbs,  27 
So.  647  (Miss.  1900);  Piedmont  R. 
Co.  V.  Speelman,  67  Md.  260 
(1887). 

But  where  defendant  by  hasten- 
ing the  act  completes  it  before  an 
injunction  can  issue,  the  court  is 
not  thereby  deprivsd  of  jurisdic- 
tion but  may  award  damages. 
Langmaid  v.  Reed,  159  Mass.  409 
(1893);  Lewis  v.  No.  Kingstown, 
16  R.  I.  15,  27  Am.  St.  Rep.  724 
(1887).    See  note  61,  post. 

60.  Boston  V.  Nicholas,  47  111. 
353  (1866);  Com.  v.  Canal  Co.,  21 
Pa.  St.  117   (1853). 

61.  Alabama.  Roberts  v.  Vest, 
126  Ala.  355  (1900). 

Illinois.  Penna.  Co.  v.  Bond,  99 
111.  App.  535,  aff.  202  111.  95  (1902- 
3);  Am.  Hide,  etc.,  Co.  v.  Ander- 
son, 153  111.  App.  79  (1910). 

Maine.  Woodman  v.  Freeman, 
25  Me.  531   (1841). 

Maryland.  Reese  v.  Wright,  98 
Md.    272    (1904). 

Whitehouse  E.  P.  Vol.  I — 49 


Massachusetts.  Foss  v.  Roby, 
195  Mass.  292,  10  L.  R.  A.  (N.  S.) 
200  (1907);  Langmaid  v.  Reed,  159 
Mass.  409  (1893). 

Micliigan.  Baldwin  v.  Escana- 
ba,  etc.,  Assn.,  130  N.  W.  214 
(Mich.  1911);  Lane  v.  Michigan, 
etc.,  Co.,  135  Mich.  70  (1903). 

Rhode  Island.  Lonsdale  Co.  v. 
Woonsocket,  25  R.  I.  428  (1903); 
Davis  V.  No.  Kingstown,  16  R.  I. 
15,  27  Am.  St.  Rep.  724   (1887). 

Tennessee.  Richie  v.  Chatt.  Brew- 
ing Co.,  105  Tenn.  651  (1900). 

Virginia.  Pack  v.  Whittaker, 
110  Va.  122   (1909). 

United  States.  New  York  v. 
Pine,  185  U.  S.  93,  48  L.  ed.  820 
(1902). 

Contra.  McMillan  v.  Wiley,  45 
Fla.  487  (1903);  Baltimore,  etc.,  R. 
V,  United,  etc.,  Co.,  93  Md.  138 
(1901). 

So  also  the  court  may  award  a 
bond  instead  of  an  injunction. 
Pike  V.  New  Hamp.  Trust  Co.,  67 
N.  H.  227   (1892). 


770  EQUITY  PRACTICE 

cient  notice  to  the  defendant  to  impose  upon  him  the 
duty  of  obeying  the  injunction  subsequently  decreed.^^ 

§  473.  Enforcement  of  injunctions.  It  is  the  duty  of 
the  defendant  to  obey  any  injunction,  order  or  decree 
against  him  of  which  he  has  actual  knowledge  whether 
by  service  of  the  writ  or  otherwise,*^^  and  such  obedience 
will  be  enforced  by  the  court  in  the  manner  described 
above  for  the  enforcement  of  decrees  other  than  for  the 
payment  of  money.^^  Such  duty  is  not  superseded  or 
removed  by  an  appeal  from  the  decree  granting  or  dis- 
solving the  injunction,  but  exists  in  full  force  pending 
such  appeal,  unless  such  appeal  under  the  statute  of  the 
state  supersedes  the  injunction.®^ 

An  injunction  must  not  only  be  obeyed  by  the  defend- 
ant personally,  but  also  by  his  agents,  attorneys,  or  ser- 
vants, and  if  disregarded  by  the  latter  through  his  pro- 
curance  or  acquiescence  he  will  be  liable  to  punishment,®*^ 
and  if  such  agents  have  notice  of  the  injunction,  they 
also  will  be  liable.®'    But  he  will  not  be  liable  for  their 

62.  Osborne  v.  Tenant,  148  Ves.  United  States.  Ex  parte  Len- 
Jr.  136;  Monneli  v.  Lawrence,  12  non,  166  U.  S.  548,  41  L.  ed.  1110 
Johns.    (X.    y.)    521    (1815).      See       (1896). 

§473,  post.  64.  See      Chap.      XXIII,      "De- 

63.  Florida.    Tbebault  v.  Canova,       crees,"  §423,  ante,  p.  676. 

11  Fla.  143  (1866).  65.  See     Chap.     XXVIII,     "Ap- 

Illinois.      Danville,    etc.,    Co.    v.  peals, "  post,  p.  847,  and  the  follow- 

Parks,  88  111.  170  (1878).  ing    cases:      A.    K.    Barnes    Co.    v. 

Maryland.      Code,   Art.    16,   Sec.  Chic,    etc.,    Union,    232    111.    402 

194.  (1908);  Penrice  v.  Wallis,  37  Miss 

Massachusetts.     Winslow  v.  Nay-  1"2;   State  v.  Harness,  42  W.  Va. 

son,  113  Ma?j;.  411  (1873).  414    (1896);    County   v.   Harshman. 

New  Hampshire.  Fowler  v.  Beek-  132  U.  S.  14,  33  L.  ed.  249  (1889). 

man,  66  X.  H.  424  (1891).  A  violation  of  restraining  order 

New  Jersey.     Kenipson  v.  Kemp-  pending  appeal   is   a   contempt    of 

son.  61  X.  J.  E.  303  (1901).  the  trial  court  and  not  of  the  ap- 

Tennessee.     Farnsworth  v.  Fow-  pellate  court.    Alfred  v.  Alfred,  90 

ler,  1  Swan  1   (1S75).  Atl.  580  (Vt.  1914). 

Vermont.      Dow    v.    Willard,    40  66.  Thompson  v.  E.  Co.,  48  X.  J. 

Vt.  654  (1868).  Eq.     105.      See    also   Ee   Rice,    ISl 

West  Virginia.    Wenger  v.  Fisher,  Fed.  217  (C.  C.  1910). 

55  W.  Va.  13  (1904).  67.  Lord    Wellesley   v.    Morning- 


INJUNCTIONS 


771 


acts  in  disobedience  of  liis  orders,*^^  nor  for  the  acts  of 
strangers  "'^  unless  the  acts  of  the  latter  were  aided  and 
countenanced  by  himj*'  The  general  rule  is  that  a  stran- 
ger to  the  writ,  not  named  therein  expressly  or  other- 
wise, is  not  bound  to  obey  itJ^  Where  an  injunction  is 
ordered  against  a  corporation  and  violated,  the  corpora- 
tion may  be  fined  and  its  officers  and  agents  punished.^^ 
The  defendant  cannot  justify  disobedience  of  any  in- 
junction on  the  ground  that  it  was  by  advice  of  counsel,'^^ 


ton,  11  Beav.  181;  Wilcox  Silver 
Plate  Co.  V.  Schimmel,  59  Mich. 
524  (1886);  Sickles  v.  Borden,  4 
Blatchf.  14   (C.  C.  1857). 

68.  Trimmer  v.  Penn.  R.  Co.,  36 
N.  J.  Eq.  411  (1882). 

69.  Slater  v.  Merritt,  75  N.  Y. 
268   (1878). 

70.  St.  John's  College  v.  Carter, 
4  M.  &  C.  497;  Stimpson  v.  Put- 
nam, 41  Vt.  238  (1868);  Societa  v. 
Distilling  Co.,  42  Fed.  96  (1890). 

71.  Iveson  v.  Harris,  7  Ves.  256; 
Harvey  v.  Smith,  179  Mass.  592 
(1901);  Lansing  v.  Easton,  7  Paige 
(N.  Y.)  364  (1839)  ;  He  Eeese,  98 
Fed.  984,  107  Fed.  942,  47  C.  C.  A. 
87  (1900-1);  Bate  Refrigerating 
Co.  V.  Gillett,  30  Fed.  085  (1887). 
But  it  is  held  that  a  purchaser 
l^endente  lite  who  has  notice  of"  the 
injunction  is  bound  to  obey  it. 
Safford  v.  People,  85  111.  558,  560 
(1877).  And  see  also  Wellesley  v 
Mornington,  11  Beav.  181;  Flan- 
nery  v.  People,  127  HI.  App.  526, 
225  111.  62  (1906-7);  In  re  Lennon, 
166  IJ.  S.  548,  554,  41  L.  ed.  1110 
(1897);  Puget  Sound,  etc.,  Co.  v. 
Lawrey,  202  Fed.  263  (1913)— 
holding  that  to  render  a  person 
amenable  to  an  injunction,  it  is 
neither  necessary  that  he  should 
have  been  a  party  to  the  suit  in 
which    the    injunction   was    issued, 


nor  to  have  been  actually  served 
with  a  copy  of  it,  so  long  as  he  ap- 
pears to  have  had  actual  notice. 

In  United  States  Playing  Card 
Co.  V.  Spaulding,  92  Fed.  368 
(1899),  it  was  held  that  persons 
who  could  not  have  been  made  par- 
ties are  bound  to  obey  the  injunc- 
tion if  they  come  within  its  terms 
and  do  the  act  prohibited  with 
knowledge  of  the  injunction. 

72.  Trimmer  v.  Penn.  R.  Co.,  36 
X.  J.  Eq;  411  (1882);  Toledo  R. 
Co.  V.  Penn.  R.  Co.,  54  Fed.  746 
(1893). 

So  of  officers  of  a  labor  union. 
Phillips  Co.  V.  Amalgamated  Assn., 
208  Fed.  335  (1913). 

73.  Continental,  etc.,  Assn.  v. 
Scott,  41  Fla.  821  (1899);  People 
V.  McWeeney,  102  N.  E.  233  (111. 
1913);  Chapel  v.  Hull,  60  Mich. 
167  (1886);  Rodgers  v.  Pitt,  89 
Fed.  424  (1898);  Pokegama,  etc., 
V.  Klamath,  etc.,  Co.,  86  Fed.  538 
(C.  C.  1898). 

But  this  may  be  considered  in 
mitigation  of  the  punishment, 
when  given  in  good  faith.  Lans- 
ing V.  Easton,  7  Paige  (N.  Y.)  364 
(1838). 

Though  the  court  will  look  al- 
ways at  the  spirit  of  an  injunction 
rather  than  the  letter  (Webb  v. 
Laird,  62  Vt.  448  (1889)  ),  yet  the 


772 


EQUITY  PRACTICE 


nor  because  the  injunction  was  improperly  or  irregularly 
granted."^  His  remedy  is  by  motion  to  dissolve  or  by 
motion  to  discharge  for  the  irregularity  "^  in  the  latter 
or  by  bill  of  review  after  final  decree  entered. 


party  who  violates  the  letter  in  re- 
liance upon  his  judgment  that  he 
iloes  not  violate  the  spirit  acts  at 
his  peril,  and  his  good  faith  in  such 
case  is  no  defence  if  he  proves  to 
be  mistaken.  Rogers  v.  Pitt,  89 
Fed.  424  (1898). 

74.  Russell  v.  R.  Co.,  3  Maen.  & 
G.  104;  People  v.  McWeeney,  102 
X.  E.  233  (111.  1913);  Kerfoot  v. 
People,  51  111.  App.  409  (1893); 
Forrest  v.  Price,  52  X.  J.  Eq.  16 
(1890);  Howe  v.  Willard,  40  Vt. 
654    (1S68);   In  re  Coy,   127   U.   S. 


731,  32  L.  ed.  274  (1887);  United 
States  v.  Agler,  62  Fed.  824 
(1894). 

But  an  injunction  may  be  disre- 
garded when  the  judge  granting  it 
lacked  jurisdiction  to  do  so.  Peo- 
ple V.  McWeeney,  102  N.  E.  233 
(111.  1913);  Fletcher,  etc.,  Co.  v. 
Detroit,  etc.,  R.  Co.,  141  N.  W.  613 
(Mich.  1913);  Powhatan,  etc.,  Co. 
V.  Riley,  56  S.  E.  257  (W.  Va. 
1906). 

75.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1687.     See  §  471,  ante,  p.  767. 


CHAPTER  XXVII 

RECEIVERS 

§  474.  Definition  of  receiver.  A  receiver  is  a  minis- 
terial officer  appointed  by  a  court  of  equity  ^  as  a  disinter- 
ested person  between  the  parties  to  the  suit,  to  take  pos- 
session of,  preserve  and  control  the  property  involved 
in  the  litigation,  where  for  any  reason  it  does  not  seem 
just  to  the  court  to  allow  it  to  remain  in  the  possession  of 
either  party. ^^  He  is  an  officer  and  representative  of  the 
court,  subject  to  its  directions,^^  and  possesses  only  such 
powers  as  are  conferred  upon  him  by  statute,  by  the 
order  of  appointment,  or  by  the  rules  and  customs  of 
the  court  of  chancery.^^ 


1.  A  receiver  can  only  be  ap- 
pointed by  a  court  of  equity  or 
other  court  exercising  equity  juris- 
diction. Stitwell  V.  Williams,  6 
Madd.  (Eng.  Ch.)  49;  Smith  v. 
Butcher,  28  Gratt.  (Va.)  144  (1877). 
In  Vermont  the  Supreme  Court  sits 
only  as  a  court  of  errors  in  chancery 
appeals  and  therefore  cannot  ap- 
point a  receiver.  Eoberts  v.  W.  H. 
Hughes  Co.,  85  Atl.  982  (Vt.  1913). 

la.  Pom.  Eq.  Jur.,  Sec.  1330; 
Smith  on  Eeceiverships,  pp.  3-4. 

lb.  Delaware.  Stockbridge  v. 
Beckwith,  6  Del.  Ch.  72    (1887). 

Florida.  Frisbie  v.  Timanus,  12 
Fla.  300  (1868). 

Illinois.  Vandalia  v.  St.  Louis, 
etc.,  R.  Co.,  209  111.  73  (1904). 

Maine.  Morrill  v.  Noyes,  56  Me. 
463  (1863). 

Maryland.    Castleman  v.  Temple- 


ton,  87  Md.  546,  67  Am.  St.  Eep.  363, 
41  L.  R.  A.  367  (1898). 

Massachusetts.  Harrison  v.  J.  J. 
Warren  Co.,  183  Mass.  123   (1890). 

Mississippi.  Lichtenstein  v.  Dial, 
68  Miss.  54   (1890). 

New  Jersey.  Boice  v.  Canover, 
54  N.  J.  Eq.  531  (1896). 

Pennsylvania.  Schwartz  v.  Key- 
stone Oil  Co.,  153  Pa.  St.  283 
(1893). 

Rhode  Island.  Mauran  v.  Crown 
Carpet  Lining  Co.,  23  R.  I.  344 
(1907). 

Vermont.  Vt.,  etc.,  R.  Co.  v.  Vt. 
Central  R.  Co.,  46  Vt.  792  (1873). 

Virginia.  Reynolds  v.  Pettijohn, 
79  Va.  327  (1884). 

United  States.  Milwaukee,  etc., 
E.  Co.  V.  Soutter,  2  Wall.  510,  17  L. 
ed.  900  (1864). 

Ic.  Young  V.  Stevenson,  180  111. 


773 


774 


EQUITY  PRACTICE 


§  475.  Who  may  be  appointed  receiver.  The  general 
rule  is  that  a  receiver  must  be  a  disinterested  person  and 
one  unlikely  from  any  cause  to  be  prejudiced  in  favor  of 
either  party .^  The  choice  of  a  suitable  person  for  a  re- 
ceiver rests  largely  in  the  discretion  of  the  court  and  will 
seldom  be  reviewed  on  appeal.-"*  The  court  will  not  ordi- 
narily appoint  a  party  to  the  suit,^  nor  a  near  relative  of 
one  of  the  parties,^  nor  a  solicitor  in  the  cause,*^  nor  the 
partner  of  a  solicitor/  nor  an  officer  or  stockholder  of  a 
corporation  which  is  a  party,^  nor  a  master  in  chancery 


608,  72   Am.  St.  Rep.   236    (1899); 
Booth  V.  Clark,  17  How.  322  (1854). 

2.  Alabama.  Etowah  Mining  Co. 
V.  Wills  Valley  Min.  Co.,  106  Ala. 
492   (1894). 

Florida.  Lehman  v.  Trust  Co.  of 
America,  57  Fla.  473  (1909). 

Illinois.  Baker  v.  Backus,  32  111. 
79  (1863). 

Maine.  Hewett  v.  Adams,  50 
Me.  271  (1862). 

Michigan.  Detroit  Bank  v.  Wire 
Works,  60  Mich.  487   (1886). 

Virginia.  Shannon  v.  Hanks,  88 
Va.  338   (1891). 

United  States.  Wood  v.  Oregon 
Co.,  55  Fed.  901  (1893). 

3.  Shannon  v.  Hanks,  88  Va.  338 
(1891).  Unless  there  is  some  over- 
whelming objection  in  point  of  pro- 
priety or  principle.  Gypsum  P.  & 
S.  Co.  V.  Adsit,  105  Mich.  497 
(1895). 

4.  .Jordan  v.  Jordan,  121  Ala.  419 
(1898);  Briggs  v.  Reynolds,  176  111. 
App.  420  (1912);  Finance  Co.  v. 
R.  Co.,  45  Fed.  436  (1891).  Except 
with  the  consent  of  the  other  side. 
Benneson  v.  Bill,  62  111.  408  (1871). 
Or  in  partnership  suits.  Wilson  v. 
Greenwood,  1  Swanst.  (Eng.  Ch.) 
483;  Reynolds  v.  Austin,  4  Del.  Ch. 
24  (1867);  Kirkpatrick  v.  Corning, 
38  N.  J.  Eq.  234,  98  Am.  Dec.  255 


(1884);  Whitesides  v.  Lafferty,  3 
Humph.  (Tenn.)  150  (1842);  Mc- 
Mahon  v.  McClernan,  10  W.  Va. 
419  (1877).  Or  under  special  cir- 
cumstances. Blakeny  v.  Dufaur,  15 
Beav.  40;  Robinson  v.  Taylor,  42 
Fed.  803,  812    (1890). 

A  party  is  not  disqualified,  in  the 
absence  of  statute.  Reynolds  v. 
Austin,  4  Del.  Ch.  24  (1867);  Iro- 
quois Furniture  Co.  v.  Kimback,  85 
111.  App.  399  (1899).  See  Robinson 
V.  Taylor,  42  Fed.  803  (1890),  where 
defendant  was  appointed. 

5.  Williamson  v.  Wilson,  1  Bland 
(Md.)  418,  427  (1827). 

6.  Garland  v.  Garland,  2  Ves.  Jr. 
137;  Baker  v.  Backus,  32  HI.  79 
(1863);  Finance  Co.  v.  Charleston, 
etc.,  R.  Co.,  45  Fed.  436  (1891). 

7.  Merchants  Bank  v.  Kent,  43 
Mich.  292  (1880).  Or  a  person  con- 
nected with  a  firm  of  solicitors. 
State  Trust  Co.  v.  National  L.  I.  & 
N.  Co.,  72  Fed.  575  (1891).  Attor- 
neys for  both  parties  may  be  ap- 
pointed. Shannon  v.  Hanks,  88  Va. 
338    (1891). 

8.  Baker  v.  Backus,  32  111.  79 
(1863);  Wiswell  v.  Starr,  48  Me. 
401  (1860);  Hewett  v.  Adams,  50 
Me.  271  (1862);  McCullough  v. 
Merchants  Co.,  29  N.  J.  Eq.  217 
(1878);  Atkins  v.  Ry.  Co.,  29  Fed. 


RECEIVERS 


775 


whose  duty  it  is  to  pass  upon  the  accounts  of  the  receiver,^ 
nor  a  trustee  of  the  property,^*'  nor  the  next  friend  of  an 
infant. ^^ 

§  476.  In  what  cases  a  receiver  may  be  appointed.  The 
appointment  of  a  receiver,  like  the  granting  of  a  prelim- 
inary injunction,  rests  in  the  sound  discretion  of  the 
court,  upon  a  careful  consideration  of  all  the  circum- 
stances of  the  case  and  the  principles  of  equity  jurispru- 
dence applicable  thereto.^  ^     A  court  of  equity  may  ap- 


161  (1886).  See  contra,  Moran  v. 
Wayne  Circuit  Judge,  125  Mich.  6 
(1900);  Farmers'  Loan  &  Trust  Co. 
V.  Northern  Pac.  E.  Co.,  61  Fed. 
546  (1894);  Ralston  v.  Washington, 
etc.,  R.  Co.,  65  Fed.  557  (1894). 

9.  Briggs  V.  Reynolds,  176  111. 
App.  420  (1912);  Benneson  v.  Bill, 
62  111.  408  (1886).  In  the  Federal 
practice  no  clerk  of  a  district  court 
or  his  deputy  shall  be  appointed  ex- 
cept where  the  judge  of  said  court 
shall  determine  the  special  reasons 
therefor.     36  U.  S.  Stat.  L.  1105. 

10.  Sutton  V.  Jones,  15  Ves.  584; 
Sykes  v.  Hastings,  11  Ves.  363.  But 
a  trustee  of  the  property  may  be 
appointed  where  it  is  for  the  best 
interests  of  the  estate.  Patterson  v. 
Northern  Trust  Co.,  230  111.  334 
(1907). 

11.  Stone  V.  Wishart,  2  Madd. 
(Eng.  Ch.)   64. 

12.  Alabama.  Fort  Payne  Fur- 
nace Co.  V.  Fort  Payne  Coal,  etc., 
Co.,  96  Ala.  472,  38  Am.  St.  Rep.  109 
(1891). 

Florida.  Frisbee  v.  Tiamus,  12 
Fla.   300    (1868). 

niinois.  Schack  v.  McKey,  97 
111.  App.  460  (1901). 

Massachusetts.  Falmouth  Bank 
V.  Canal  Co.,  166  Mass.  550  (1896). 

Michigan.  Rankin  v.  Rothschild, 
78  Mich.  10   (1889). 


Mississippi.  Myers  v.  Estell,  48 
Miss.  372  (1873). 

New  Hampshire.  Eastman  v.  Sav- 
ings Bank,  58  N.  H.  421   (1878). 

New  Jersey.  Newfoundland  R. 
Construction  Co.  v.  Schack,  40  N. 
J.   Eq.  222    (1885). 

Pennsylvania.  Beaumont  v.  Beau- 
mont, 166  Pa.  St.  615   (1895). 

Tennessee.  Cone  v.  Paute,  12 
Heisk.  506  (1873). 

Virginia.  Lyle  v.  Bank,  93  Va. 
487   (1897). 

West  Virginia,  Lamp  v.  Home- 
stead Bldg.  Association,  62  W.  Va. 
56   (1906). 

United  States.  Milwaukee  R.  Co. 
V.  Soutter,  2  Wall.  510,  17  L.  ed. 
604   (1864). 

Such  discretion,  however,  is  sub- 
ject to  review  on  appeal.  Alabama 
Code,  Sec.  3840;  Grantham  v.  Lu- 
cas, 15  W.  Va.  425  (1879);  Mil- 
waukee R.  Co.  V.  Soutter,  2  Wall. 
510,  17  L.  ed.  900  (1864).  But  will 
not  be  interfered  with  by  the  up- 
per court  where  the  testimony  is 
conflicting,  except  where  the  discre- 
tion is  abused.  Graham  v.  El.  Co., 
75  Ga.  878  (1885);  Naylor  v. 
Sidener,  106  Ind.  179  (1885).  One 
material  consideration  which  should 
influence  the  discretion  of  the  court, 
is  the  probability  of  the  plaintiff 
being  ultimately  entitled  to  a  de- 


776 


EQUITY  PRACTICE 


point  a  receiver  chiefly  in  four  different  classes  of  cases: 
1,  where  the  persons  entitled  to  possession  of  the  prop- 
erty, during  the  cause,  are  incompetent;  2,  where  all  of 
the  parties  are  equally  entitled  to  the  possession,  but  it  is 
not  proper  to  give  either  one  the  preference ;  3,  where  the 
persons  entitled  are  violating  an  express  or  constructive 
trust;  4,  where  a  receiver  is  required  after  a  decree,  to 
carry  the  latter  into  effect.^ ^  ij^  ^11  these  cases,  the  pur- 
pose of  appointing  the  receiver  is  to  protect  the  prop- 
erty and  preserve  it  from  injure-  pending  the  final  dis- 
position of  the  property  by  order  of  court.  The  appoint- 
ment of  the  receiver  is  not  the  main  object  of  the  suit, 
but  only  a  provisional  remedy  to  preserve  property  pend- 
ing litigation.^  ^^  The  receiver  may  be  appointed  over 
any  kind  of  property,  real  or  personal,  legal  or  equitable, 
which  may  properly  be  the  subject  of  litigation  in  equity, 
even  though  such  property  be  situated  in  another  state, 
provided  the  court  has  jurisdiction  of  the  person  of 
the  owner.^* 


cree.  It  is  held  that  where  there  is 
no  reasonable  probability  that  the 
plaintiff  can  obtain  the  relief 
prayed  by  the  decree,  a  receiver 
will  not  be  appointed.  Builders 
Supply  Co.  V.  Lucas,  119  Ala.  202 
(1898);  Owen  v.  Homan,  3  Mac.  & 
G.  (Eng.  Ch.)  378.  On  a  prelimi- 
nary hearing,  therefore,  for  the  ap- 
pointment of  a  receiver,  the  ques- 
tions to  be  determined  are  whether 
it  is  probable  that  the  allegations 
of  the  bill  will  be  sustained  on  final 
hearing,  and  whether  meanwhile  the 
property  ought  to  be  taken  into 
legal  custody  in  order  to  preserve 
it  and  protect  the  rights  of  the  par- 
ties. Kelley  v.  Boettcher,  89  Fed. 
125   (1898). 

13.  Pom.  Eq.  Jur.,  Sees.  1332- 
1335. 

13a.  Cooke  v.  Groyn,  3  Atk. 
(Eng.    Ch.)    689;    Davis    v.    Alton, 


etc.,  R.  Co.,  180  111.  App.  1  (1913) ; 
Blair  v.  Green,  45  N.  J.  E.  671 
(1889) ;  Hagenbeck  v.  Arena  Co.,  59 
Fed.  14  (1893). 

14.  Keys  v.  Keys,  1  Beav.  (Eng. 
Ch.)  425;  Bayne  v.  Pottery  Co.,  82 
Fed.  391  (1897).  In  such  case,  in 
order  to  invest  the  receiver  with 
contrckl  of  the  property  as  against 
citizens  of  the  other  state,  the 
court  will  act  on  the  person  of  the 
owner  and  compel  him  either  to 
bring  the  property  within  the  ju- 
risdiction or  convey  it  to  the  re- 
ceiver. State  V.  R.  Co.,  18  Md.  215 
(1861);  Carr  v.  Weld,  19  N.  J.  E. 
319  (1868);  Muller  v.  Dows,  94 
U.  S.  444,  24  L.  ed.  207  (1876).  See 
also  Chap.  Ill,  "Jurisdiction," 
Sec.  40,  ante,  p.  48;  Chap.  XXV, 
"Equitable  Remedies,"  ante,  p. 
704. 


KECEIVERS 


777 


§  477.  Receivers  of  the  property  of  incompetents.    The 

first  class  includes  estates  of  infants,  lunatics  and  de- 
cedents.^^ The  occasion  for  the  appointment  of  receivers 
in  these  three  cases  is  so  largely  done  away  with  by 
statute  in  this  country,  that  they  require  no  further  con- 
sideration here. 

§  478.  Receivers  in  suits  between  partners,  co-owners, 
and  conflicting"  claimants.  The  second  class  includes  suits 
between  partners,^^  suits  for  partition  between  co-own- 
ers,^'^ and  suits  between  conflicting  claimants  of  real 
estate  in  special  cases  where  the  plaintiff  shows  a  rea- 


ls. Pom.  Eq.  Jur.,  Sec.  1332. 

16.  Pom.  Eq.  Jur.,  Sec.  1333;  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1727. 
High  on  Eeceivers,  Sees.  509,  510. 
"It  is  not  the  province  of  the  court 
to  conduct  the  business  of  a  co-part- 
nership." High  on  Eec,  Sec.  480. 
In  extreme  cases  of  danger  from 
misconduct,  however,  a  receiver 
may  be  appointed  without  a  disso- 
lution. Pom.  Eq.  Jur.,  See.  1333. 
See  also  High  on  Receivers,  Sec. 
514;  Const  v.  Harris,  Turn.  & 
R.  (Eng.  Ch.)  496;  Gilmore  v.  Pat- 
terson, 36  Me.  544  (1853).  One  of 
the  most  frequent  occasions  for  ap- 
pointing a  receiver  is  where  the  bill 
seeks  a  dissolution  on  the  ground 
that  one  partner  has  excluded  the 
other  from  the  management  and 
profits  of  the  business.  Wilson  v. 
Greenwood,  1  Swans.  (Eng.  Ch.) 
471;  Gillett  v.  Higgins,  142  Ala. 
444  (1904);  Katz  v.  Brewington,  71 
Md.  79  (1889);  Kirby  v.  Ingersoll, 
1  Doug.  (Mich.)  477  (1844);  Ein- 
stein V.  Schnebly,  89  Fed.  540 
(1898).  See  also  Phillips  v.  Atkin- 
son, 2  Bro.  C.  C.  (Eng.  Ch.)  272, 
death  of  both  partners;  Madgwick 
V.  Wimble,  6  Beav.  495;  Miller  v. 
Jones,  39  111.  54  (1865),  death  of 
one  partner  and  misconduct  of  sur- 


vivor; Reynolds  v.  Austin,  4  Del. 
Ch.  24  (1867),  insanity  of  part- 
ners. For  other  examples  of  ap- 
pointment of  receivers  over  part- 
nership property,  see: 

Florida.  Allen  v.  Hawley,  6  Fla. 
142,  63  Am.  Dec.  198  (1855). 

Maryland.  Drury  v.  Roberts,  2 
Md.  Ch.  157   (1848). 

Michigan.  Perrin  v.  Lepper,  56 
Mich.  351   (1885). 

Mississippi.  Reed  v.  Freed,  100_ 
Miss.  48   (1911). 

New  Jersey.  Sutro  v.  Wagner, 
23  N.  J.  Eq.  388  (1873);  Randall  v. 
Morrell,  17  N.  J.  Eq.  343,  346 
(1866);  Wolbert  v.  Harris,  7  N.  J. 
Eq.  605  (1849). 

Pennsylvania.  Fox  v.  Curtis,  176 
Pa.  52  (1896);  Sloan  v.  Moore,  37 
Pa.  217   (1860). 

West  Virginia.  McMahon  v.  Mc- 
Clernan,  10  W.  Va.  419  (1877);  Bal- 
lard V.  Callisou,  4  W.  Va.  326 
(1870). 

United  States.  Gaddie  v.  Mann, 
147  Fed.  960  (1906). 

For  refusal  to  appoint,  see 
Hinkley  v.  Blethen,  78  Me.  221 
(1886);  Harvey  v.  Varney,  104 
Mass.  436  (1870),  assets  in  foreign 
jurisdiction. 

17.  Pom.  Eq.  Jur.,  Sec.  1333,  note 


778 


EQUITY  PRACTICE 


sonable  probability  of  establishing  his  title,  and  there  is 
imminent  danger  to  the  property  or  its  rents  and  profits.^^ 
§  479.  Receivers  in  suits  regarding  express  and  con- 
structive trusts,  liens,  corporations.  The  third  class  ^^ 
of  cases  in  which  a  receiver  will  be  appointed,  embraces 
the  following:  1,  suits  against  trustees  who  have  been 
guilty  of  a  breach  of  trust;  ^o  2,  suits  against  executors 


2;  High  on  Reo.,  Sec.  606,  607;  Jeff- 
reys V.  Smith,  1  Jac.  &  W.  (Eng. 
Ch.)  298,  Colliery.  In  ordinary 
cases  of  partition  between  co-own- 
ers of  land,  a  receiver  is  not  ap- 
pointed as  a  rule  unless  some  of  the 
parties  are  in  sole  possession  to  the 
exclusion  of  the  others.  Pom.  Eq. 
Jur.,  Sec.  1333;  Milbank  v.  Revett, 
2  Merv.  (Eng.  Ch.)  405;  Street  v. 
Anderton,  4  Brown  Ch.  (Eng.  Ch.) 
414;  Brenan  v.  Preston,  2  De  G.  M. 
&  G.  813,  shipowners;  Ames  v. 
Ames,  148  111.  321  (1894);  Duncan 
V.  Campau,  15  Mich.  415  (1867); 
Pierce  v.  Pierce,  55  Mich.  629 
(1885)  J  Weise  v.  Welsh,  30  N.  J. 
Eq.  431   (1879). 

18.  Pom.  Eq.  Jur.,  Sec.  1333; 
High  on  Receivers,  Sec.  558;  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1725;  Hu- 
gonin  V.  Baseley,  13  Ves.  105;  Bain- 
brigge  v.  Baddeley,  3  Mac.  &  G. 
(Eng.  Ch.)  414;  Hereford  v.  Here- 
ford, 134  Ala.  321  (1901);  Mapes 
V.  Scott,  4  111.  App.  268 
(1879);  Vause  v.  Woods,  46 
Miss.  120  (1871);  Schlechts'  Ap- 
peal, 60  Pa.  172  (1869);  Freer  v. 
Davis,  52  W.  Va.  35,  94  Am.  St. 
Rep.  910  (1903).  The  appointment 
of  a  receiver  upon  the  above 
grounds,  however,  must  be  regarded 
as  an  exception  to  the  general  rule 
that  a  court  of  equity  will  not  in- 
terpose between  conflicting  claim- 
ants to  the  legal  title  of  real  estate 


by  the  appointment  of  a  receiver, 
e.  g.,  claimants  not  in  possession,  as 
in  the  case  of  several  heirs  at  law. 
High  on  Receivers,  Sec.  544;  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1725; 
Knight  V.  Duplessis,  1  Ves.  Sr.  325; 
Hitchen  v.  Birks,  L.  R.  10  Eq.  471. 
Or  against  a  defendant  in  posses- 
sion under  claim  of  title.  High  on 
Receivers,  Sec.  557;  Lloyd  v.  Pas- 
singham,  16  Ves.  59;  Clark  v. 
Ridgely,  1  Md.  Ch.  70  (1847) ;  Vause 
V.  Woods,  46  Miss.  120  (1871); 
Willis  V.  Corlies,  2  Edw.  Ch.  (N. 
Y.)  281  (1834).  In  all  such  cases 
the  court  will  leave  the  plaintiff  to 
assert  his  title  at  law.  Talbot  v. 
Hope  Scott,  4  K.  &  J.  (Eng.  Ch.) 
96. 

19.  See  Pom.  Eq.  Jur.,  Sec.  1334. 

20.  Evans  v.  Coventry,  5  De  G. 
M.  &  G.  (Eng.  Ch.)  911,  916;  Cal- 
houn V.  King,  5  Ala.  525  (1843); 
Richards  v.  Barrett,  5  111.  App.  510 
(1879);  Burroughs  v.  Gaither,  66 
Md.  171  (1886);  Eastman  v.  Sav. 
Bank,  58  N.  H.  421  (1878);  Price 
v.  Price,  23  N.  J.  Eq.  428  (1873); 
McCandless  v.  Warner,  26  W.  Va. 
754  (1885).  Courts  are  averse  to 
displacing  trustees  by  receivers  un- 
less there  is  real  danger  to  the  prop- 
erty through  their  misconduct. 
High  on  Receivers,  Sec.  693;  Or- 
phan Asylum  v.  McCarty,  Hopk. 
Ch.  (N.  Y.)  429  (1825). 


RECEIVERS 


779 


or  administrators  under  like  circumstances;  21  3,  suits 
to  enforce  a  mortgage,  when  the  security  is  inadequate 
•or  where  there  is  danger  of  loss  through  misconduct  of 
the  mortgagor;  22  4^  suits  under  like  circumstances  to 
enforce  the  specific  performance  of  contracts  for  the  sale 
of  land;  2-  5,  suits  under  like  circumstances  to  enforce 
equitable  liens,^^  including  liens  of  judgment  creditors 
who  have  exhausted  their  remedy  at  law;^^  6,  suits  by 
simple  contract  creditors  under  special  statutes  to  reach 
and  apply  directly,  without  first  exhausting  remedy  at 
law,  property  which  cannot  be  come  at  to  be  attached  ;26 


21.  Middletown  v.  Dodswell,  13 
Ves.  266;  Eandle  v.  Carter,  62  Ala. 
95  (1878);  State  v.  Wilmer,  65  Md. 
178  (1885);  Leddel's  Ex'r  v.  Starr, 
19  N.  J.  Eq.  163  (1868);  Beverley 
V.  Brooke,  4  Gratt.  (Va.)  187 
(1847).  As  in  the  case  of  trustees 
it  must  be  a  real  danger  through 
misconduct  and  waste.  Haines  v. 
Carpenter,  1  Woods  (U.  S.)  262 
(1872). 

22.  Ashhurst  v.  Lehman,  86  Ala. 
370  (1888);  Haas  v.  Society,  89  111, 
498  (1878);  Rose  v.  Bevan,  10  Md. 
470,  69  Am.  Dec.  171  (1857);  Phil- 
lips V.  Eiland,  52  Miss.  721  (1876); 
Brasted  v.  Sutton,  30  N.  ,J.  Eq.  462 
(1879);  Cheever  v.  Rutland,  etc., 
R.  Co.,  39  Vt.  653  (1863);  Dunlap 
V.  Hedges,  35  W.  Va.  287  (1891); 
Union  Mut.  Life  Ins.  Co.  v.  Union 
Mills  Plaster  Co.,  37  Fed.  291 
(1889). 

No  receiver  will  be  appointed 
where  the  mortgagor  is  solvent  or 
where  being  insolvent  he  is  apply- 
ing the  rents  and  profits  on  the 
mortgage  debt.  Warren  v.  Pitts, 
114  Ala.  65  (1896);  Stillwell,  etc., 
Co.  V.  Williamson  Oil,  etc.,  Co.,  80 
Fed.  68   (1897). 

23.  In  suit  by  vendor,  where  land 


is  of  doubtful  security  or  vendee  in- 
solvent or  committing  waste.  Hall 
v.  Jenkinson,  2  V.  &  B.  (Eng.  Ch.) 
125;  Phillips  v.  Filand,  52  Miss.  721 
(1876).  In  a  suit  by  the  vendee 
where  the  vendor  has  fraudulently 
repossessed  himself  of  property. 
Dawson  v.  Yates,  1  Beav.  (Eng. 
Ch.)   301. 

24.  High  on  Receivers,  Sec.  408; 
Adams'  Eq.  125;  Hopkins  v.  Canal, 
L.  R.  6  Eq.  437. 

25.  See  Sec.  447,  <ante,  p.  718; 
Curling  v.  Townshend,  19  Ves.  628; 
Lumber  Co.  v.  Teague,  24  So.  Rep. 
4  (Ala.  1898);  Gage  v.  Smith,  79 
111.  219  (1875);  Moore  Furniture 
Co.  v.  Prussing,  71  111.  App.  666 
(1897);  Kuhl  v.  Martin,  26  N.  J. 
Eq.  60  (1875);  Hopper  v.  Morgan, 
42  Atl.  171  (N.  J.  Ch.  1899) ;  Blood- 
good  v.  Clark,  4  Paige  (N.  Y.)  574 
(1834);  Davis  v.  Chapman,  83  Va. 
67  (1887). 

26.  See  See.  447,«/!<e,  p.  718;  Ala. 
Iron  Co.  V.  McKeever,  112  Ala.  134 
(1895);  Maine  R.  S.,  Chap.  79,  Sec. 
6,  cl.  IX,  Sec.  8;  Gable  v.  Williams, 
59  Md.  46  (1882);  Maddoek  v. 
Skinker,  93  Va.  479  (1896);  Mellen 
v.  Iron  Works,  131  U.  S.  352  (1888). 


780 


EQUITY  PRACTICE 


7,  suits  of  various  kinds  against  corporations,  including 
railway  corjDorations,-"  by  stockholders'  bill,-^  creditors' 


27.  Courts  of  equity  are  loath  to 
appoint  receivers  over  railways,  ow- 
ing to  their  importance  as  quasi 
public  bodies,  and  the  peculiar  na- 
ture of  their  property  and  fran- 
chises. State  V.  Jacksonville,  etc.,  R. 
Co.,  15  Fla.  201  (1875);  Milwaukee 
B.  Co.  v.  Soutter,  2  Wall.  510,  17 
L.  ed.  900  (1865).  The  following 
are  the  two  most  important  classes 
of  cases  in  which  such  receivers 
will  be  appointed.  1,  For  the  pro- 
tection of  mortgagees  and  bond- 
holders upon  the  failure  of  the 
corporation  to  pay  principal  or 
interest.  Kelley  v.  Ala.,  etc.,  R.  Co., 
58  Ala.  489  (1877) ;  Mason  v.  R.  Co., 
52  Me.  82  (1861);  Central  Trust  Co. 
v.  Chattanooga,  etc.,  R.  Co.,  94  Fed. 
275  (1899);  Doe  v.  Northwest  Co., 
64  Fed.  928  (1894).  2,  Where  the 
revenues  and  income  of  the  road 
are  being  misapplied,  the  business 
mismanaged,  the  property  wasted  or 
money  embezzled.  Kelly  v.  R.  Co., 
58  Ala.  489  (1877);  Stevens  v. 
Davison,  18  Gratt.  (\a.)  819 
(1868). 

28.  Where  there  is  mismanage- 
ment or  fraud  on  the  part  of  offi- 
cers, directors  or  a  majority  of  the 
stockholders. 

Officers   and  Directors: 

Maine.  Ulmcr  v.  Maine  Real  Es- 
tate Co.,  93  Me.  324  (1893). 

Maryland.  DuPuy  v.  Terminal 
Company,  82  Md.  408  (1896). 

Michigan.  Miner  v.  Ice  Co.,  93 
Mich.  97  (1892). 

Mississippi.  Brent  v.  R.  E.  Bris- 
ter  Sawmill  Co.,  60  So.  1018,  43  L. 
R.  A.  (X.  S.)   720  (1913). 

New  Hampshire.  Fisher  v.  Con- 
cord Railroad,  54  X.  H.  200  (1870). 

New  Jersey.     Fongeray  v.  Cord, 


50  N.  J.  Eq.  185  (1892);  Nichols 
V.  Perry  Co.,  11  X.  J.  Eq.  126 
(1856). 

West  Virginia.  Lamp  v.  Home- 
stead Bldg.  Association,  62  W.  Va. 
56  (1907). 

United  States.  Sage  v.  Memphis, 
etc.,  R.  Co.,  125  U.  S.  361,  31  L.  ed. 
694  (1887). 

Majority  of  stockholders:  Cons. 
Tank  Co.  v.  Varnish  Co.,  43  Fed. 
204   (1890). 

But  a  receiver  will  not,  in  some 
states,  be  appointed  for  fraud  and 
mismanagement  in  the  absence  of 
statute  where  it  will  necessarily  re- 
sult in  dissolution  of  the  corpora- 
tion. Barton  v.  Fraternal  Alliance, 
85  Md.  14  (1897);  Mason  v.  Su- 
preme Court  E.  L.,  77  Md.  483,  38 
Am.  St.  Rep.  433  (1893). 

Mere  internal  dissentions  and  dis- 
satisfaction with  the  management 
is  not  a  sufficient  reason  for  ap- 
pointment of  a  receiver  without 
fraudulent,  illegal  and  ultra  vires 
conduct. 

Illinois.  Wheeler  v.  Pullman 
Iron,  etc.,  Co.,  143  111.  197,  17  L.  R. 
A.  818  (1892). 

Maryland.  Howeth  v.  Coulburne 
Co.,  115  Md.  107  (1911). 

New  Hampshire.  Fisher  v.  Con- 
cord R.  Co..  50  X.  H.  200  (1870). 

New  Jersey.  Sternburg  v.  Wolff, 
56  X.  .1.  Eq.  555  (1898). 

United  States.  X'owell  v.  Inter- 
national Trust  Co.,  169  Fed.  497 
(1900). 

It  has  been  held  that  under  gen- 
eral equity  principles  a  receiver 
will  not  be  appointed  merely 
on  account  of  the  insolvency  of 
a  corporation.  Thoroughgood  v. 
Georgetown  Water  Co.,  9  Del.  Ch. 


RECEIVERS 


781 


bill  29  or  bill  for  dissolution  under  statutory  provisions.^*^ 


84  (1910);  Falmouth  Nat.  Bank  v. 
Cape  Cod  Ship  Canal  Co.,  166 
Mass.  550  (1896);  Whitney  v. 
Bank,  71  Miss.  1009,  23  L.  R.  A. 
531  (1894);  Cape  May  v.  Cape 
May,  etc.,  Ey.  Co.,  59  N.  J.  Eq.  59 
(1899);  Worth  Mfg.  Co.  v.  Bing- 
ham, 116  Fed.  785  (1902).  But  in 
some  cases  it  has  been  held  that 
where  the  insolvency  has  been 
caused  by  the  fraud  or  mismanage- 
ment of  the  officers  or  directors,  a 
receiver  may  be  appointed.  Mor- 
ris V.  Elyton  Land  Co.,  125  Ala. 
263  (1899);  Thoroughgood  v. 
Georgetown  Water  Co.,  9  Del.  Ch. 
84  (1910);  United  States  Ship- 
building Co.  V.  Conklin,  126  Fed. 
132   (1903). 

Where  the  mismanagement  is 
jeopardizing  the  property,  a  re- 
ceiver will  be  appointed.  Cowan 
V.  Pa.  Plate  Glass  Co.,  184  Pa.  1 
(1898). 

A  receiver  may  be  appointed 
pendente  lite  to  preserve  the  prop- 
erty where  there  is  a  contest  be- 
tween rival  boards  of  directors, 
Jasper  Land  Co.  v.  Wallis,  123  Ala. 
652  (1898),  and  such  a  receiver  may 
be  appointed  by  the  court  in  juris- 
dictions where  it  does  not  have 
power  to  appoint  a  permanent  re- 
ceiver to  wind  up  the  corporation. 
Sternberg  v.  Wolff,  56  N.  J.  Eq.  555 
(1898);  Columbia  Nat.  Sand  Dredg- 
ing Co.  V.  Washed  Bar  Sand  Dredg- 
ing Co.,  136  Fed.  710  (1905). 

29.  Judgment  creditors  after  ex- 
hausting legal  remedy.  Runals  v. 
Harding,  83  111.  75  (1876);  Kuhl  v. 
Martin,  26  N.  J.  Eq.  60  (1875); 
Smith  V.  Butcher,  28  Gratt.  144 
(1877);  Grantham  v.  Lucas,  15  W. 
Va.  425  (1879);  Sage  v.  R.  Co.,  125 
U.   S.    361,   31    L.   ed.   694    (1887); 


Union  Trust  Co.  v.  Ry.  Co.,  117  U. 
S.  434,  29  L.  ed.  963  (1885);  Her- 
vey  V.  R.  Co.,  28  Fed.  169  (1886). 

Creditors  secured  by  mortgage  or 
bond  on  default  in  payment  of  prin- 
cipal or  interest.  Beecher  v.  Rolling 
Mills  Co.,  40  Mich.  307  (1879); 
Stockman  v.  Wallis,  30  N.  J.  Eq. 
449  (1879) ;  American  Bridge  Co.  v. 
Heidelbach,  94  U.  S.  798  (1876); 
Union  Mut.  Life  Ins.  Co.  v.  Plaster 
Co.,  37  Fed.  286  (1889). 

In  Falmouth  Bank  v.  Cape  Cod 
Ship  Canal  Co.,  166  Mass.  550,  568 
(1896),  the  court  said:  "Generally 
the  appointment  of  a  receiver  rests 
in  the  sound  discretion  of  the  court. 
But  in  order  to  justify  the  appoint- 
ment of  one  on  the  application  of 
a  creditor,  it  should  at  least  ap- 
pear that  he  has  a  valid  claim 
against  the  corporation,  that  there 
are  assets  applicable  to  its  pay- 
ment, and  that  he  has  exhausted  his 
legal  remedies,  or  that  the  circum- 
stances are  such  that  to  deny  the 
application  would  lead  to  a  wasting 
and  loss  of  property  which  other- 
wise might  be  made  available  for 
the  payment  of  the  debts  of  the 
corporation,  and  which  could  not  be 
availed  of  in  any  other  manner  so 
satisfactorily,  as  by  the  appoint- 
ment of  a  receiver.  A  receivership 
is  not  to  be  regarded  as  an  ordinary 
incident  of  the  proceedings  to  col- 
lect a  debt.  Hollins  v.  Brierfield 
Coal  &  Iron  Co.,  150  U.  S.  371,  37 
L.  ed.  1113  (1893);  Parker  v. 
Moore,  3  Edw.  Ch.  (N.  Y.)  234 
(1846);  High  on  Receivers,  Sec. 
406;  Thompson,  Corp.,  Sees.  6839, 
6848,  and  cases  cited." 

30.  People    v.    Weigley,    155    111. 
491   (1895). 

See  statutes  of  the  various  states. 


782 


EQUITY  PRACTICE 


§  480.  Receivers  after  decrees.    The  fourth  class  com- 
prises all  cases  where  receivers  are  appointed  after  de- 


In  the  absence  of  a  statute  giving 
such  powers,  a  court  of  equity  has 
no  general  power  to  dissolve  a  cor- 
poration. 

Illinois.  Bixler  v.  Summerfield, 
195  111.  147  (1902);  Gillespie  v. 
Steel  Co.,  62  111.  App.  594  (1895). 

Maine.  Ulmer  v.  Maine  Real  Es- 
tate Co.,  93  Me.  324   (1899). 

Maryland.  Barton  v.  Interna- 
tional Fraternal  Alliance,  85  Md. 
14  (1897). 

New  Jersey.  Benedict  v.  Colum- 
bus Constr.  Co.,  49  N.  J.  Eq.  23 
(1891). 

Tennessee.  State  v.  Merchants' 
Ins.  &  T.  Co.,  8  Hump.  235  (1847). 

But  in  some  jurisdictions  it  is 
held  that  a  court  of  equity  may  dis- 
solve a  corporation  even  in  the 
absence  of  statute  for  fraud  or  mis- 
management on  the  part  of  its  of- 
ficers. Miner  v.  Belle  Isle  Ice  Co., 
93  Mich.  97,  17  L.  R.  A.  412  (1892) ; 
Brent  v.  R.  E.  Brister  Sawmill  Com- 
pany, 60  So.  1018,  43  L.  R.  A.  (X. 
S.)  720  (Miss.  1913).  Or  where 
its  affairs  have  been  so  managed 
that  failure  or  ruin  is  inevitable. 
Central  Land  Co.  v.  Sullivan,  152 
Ala.  360  (1907);  Ulmer  v.  Maine 
Real  Estate  Co.,  93  Me.  324  (1899). 

Statutes  frequently  provide  for 
appointing  receivers  of  insolvent 
savings  banks,  insurance  companies, 
and  similar  corporations  at  the  in- 
stance of  state  officials  whose  duty 
it  is  to  dissolve  such  corporations. 

There  is  another  class  of  stat- 
utes which  attempt  to  give  the 
court  power  to  appoint  receivers 
and  wind  up  ordinary  business  cor- 
porations where  they  become  in- 
solvent. Some  of  these  statutes 
have   been  held   to  be   state  insol- 


vent laws  and  therefore  superseded 
by  the  Federal  Bankruptcy  Act. 
Moody  V.  Development  Co.,  102  Me. 
365  (1907);  Mauran  v.  Carpet  Lin- 
ing Co.,  23  R.  L  324  (1901);  In  re 
Storck  Lumber  Co.,  114  Fed.  360 
(1902).  In  Moody  v.  Development 
Co.,  ubi  supra,  it  was  held  that  Ch. 
85,  Laws  of  Maine,  1905,  which  au- 
thorizes the  court  to  appoint  a 
receiver  to  take  charge  of  an  insol- 
vent corporation  with  full  power  to 
bring  suits  at  law  or  in  equity,  to 
discharge  the  liabilities  and  distrib- 
ute the  assets  either  in  full  or 
upon  a  percentage  of  the  claims 
proved,  and  which  also  bars  all 
claims  not  proven  within  the  time 
specified  by  the  statute  or  by  the 
order  of  court  is  an  insolvent  law, 
and  the  court  has  no  jurisdiction  to 
appoint  a  receiver  thereunder.  This 
Maine  statute  has  since  been 
amended  (Laws  of  1907,  Ch.  137) 
by  striking  out  the  provision  which 
bars  all  claims  not  proven  within 
four  months.  Whether  the  court 
may  appoint  a  receiver  and  wind 
up  the  corporation  for  insolvency 
under  this  statute  as  amended  has 
not  as  yet  been  decided. 

Where  the  case  is  not  one  which 
comes  under  the  express  provisions 
of  the  Federal  Bankruptcy  Act, 
proceedings  under  the  state  statute 
may  be  taken,  a  receiver  of  an  in- 
solvent corporation  appointed  and 
the  property  administered  under 
the  state  laws.  Rogers  v.  Club,  205 
Mass.  261  (1910);  Singer  v.  Na- 
tional Bedstead  Mfg.  Co.,  65  X.  J. 
Eq.  290  (1903);  Murphy  v.  Pen- 
niman,  105  Md.  452,  121  Am.  St. 
Rep.  583   (1907);  State  Nat.  Bank 


RECEIVERS 


783 


crees,  to  carry  the  latter  into  effect,  other  than  decrees 
in  suits  of  the  three  classes  previously  mentioned  above.^^ 
§  481.  Appointment,  how  obtained.  It  is  a  pre-requi- 
site  to  the  appointment  of  a  receiver  that  there  shall  be 
a  suit  pending  in  which  application  may  be  made.^^  It 
is  not  indispensable  that  there  should  be  a  special  prayer 
for  a  receiver  inserted  in  the  bill,  either  in  order  to 
obtain  a  receiver  upon  interlocutory  application,^-^  or 
upon  final  hearino-,-^  or  after  final  decree,-^''  if  sufficient 
grounds  are  shown  therefor,  since  the  occasion  for  a 
receiver  often  does  not  arise  or  appear  until  after  the 
filing  of  the  bill.    Where  the  grounds  for  receiver  and  a 


V.  Syndicate  Co.,  178  Fed.  3.59 
(1910).  This  follows  the  general 
rule  that  state  insolvent  laws  are 
only  superseded  in  so  far  as  they 
are  in  conflict  with  the  Federal 
Bankruptcy  Act.  Old  Town  Bank 
V.  McCormick,  96  Md.  341,  60  L. 
R.  A.  577,  94  Am.  St.  Eep.  577 
(1903);  Miller  v.  Jackson,  34  Pa. 
Super.  Ct.  31  (1907);  Lace  v. 
Smith,  82  Atl.  268  (E.  I.  1912). 
Compare  Littlefield  v.  Gay,  96  Me. 
422   (1902). 

31.  Pom.  Eq.  Jur.,  Sec.  1335.  See 
Sec.  481,  note  43,  post,  p.  787. 

32.  Ex  parte  Whitfield,  2  Atk. 
(Eng.  Ch.)  315;  Ex  parte  Mountfort, 
15  Ves.  (Eng.  Ch.)  445;  Howell  & 
Howell  V.  Harris  Cortner  &  Co.,  168 
Ala.  383  (1910);  Baker  v.  Backus, 
32  111.  79  (1863);  Merchants  Bank 
V.  Kent,  43  Mich.  292  (1880) ;  Bank 
V.  Hardy,  94  Miss.  587  (1909); 
Leddel's  Ex'r  v.  Starr,  4  C.  E, 
Green  (N.  J.)  159  (1868);  Balti- 
more Bargain  House  v.  St.  Clair,  58 
W.  Va.  565   (1906). 

The  appointment  of  a  receiver 
before  bill  is  filed  is  improper. 
Dixon  V.  Dixon,  86  Atl.  1042  (Md. 
1913). 


33.  Osborne  v.  Harvey,  1  Y.  &  C. 
(Eng.  Ch.)  116;  Gray  v.  Newark,  79 
Atl.  735  (Del.  1911);  Ladd  v.  Har- 
vey, 21  N.  H.  514  (1850);  Henshaw 
V.  Wells,  9  Humph.  (Tenn.)  568 
(1848);  Elk  Fork,  etc.,  Co.  v.  Fos- 
ter, 99  Fed.  495  (1900).  But  see 
Wilson  V.  Maddox,  46  W.  Va.  641 
(1899)  contra.  The  better  practice 
is  to  insert  a  special  prayer  for  re- 
ceiver when  it  is  known  at  the  time 
of  filing  bill  that  a  receiver  will  be 
required  as  a  part  of  the  final  de- 
cree, and  to  apply  by  petition  where 
an  interlocutory  receiver  is  desired. 

34.  Osborne  v.  Harvey,  1  Y.  & 
C.  (Eng.  Ch.)  116;  Gray  v.  Newark, 
70  Atl.  735  (Del.  1911).  Contra: 
Jordan  v.  Jordan,  121  Ala.  419 
(1898),  unless  the  necessity  be  of 
the  most  stringent  character.  Gil- 
lespie V.  Green,  etc.,  Asso.,  95  111. 
App.  543  (1900). 

35.  Bowman  v.  Bell,  14  Sim. 
(Eng.  Ch.)  392;  Thomas  v.  Davies, 
11  Beav.  (Eng.  Ch.)  29;  Shannon  v. 
Hanks,  88  Vt.  338  (1891).  Provided 
a  strong  case  is  made  out.  Haas  v. 
Building  Soc,  89  111.  498  (1878). 


784 


EQUITY  PRACTICE 


prayer  therefor  are  contained  in  the  bill,  it  is  believed 
to  be  the  best  practice  for  the  bill  to  be  verified  by  oath  ^'^ 
and  the  matter  brought  to  the  attention  of  the  court  by 
oral  motion,  as  in  the  case  of  bills  seeking  injunction  or 
the  writ  ne  exeat,  thus  making  the  practice  uniform. 
Where  a  receiver  is  not  prayed  for  in  the  bill,  the  appli- 
cation should  be  made  by  petition^"  setting  forth  the 
grounds  therefor  and  verified  by  oath.^^^  Notice  should 
be  given  to  the  adverse  party .-^'^    A  receiver  will  not  be 


36.  In  Alabama,  bills  for  appoint- 
ment of  receivers  must  be  under 
oath.  Burgess  v.  Martin,  111  Ala. 
656  (1895).  So  in  Vermont  as  to 
interlocutory  receivers.  Eq.  Rule 
7.  See  Vt.  Rule  52  as  to  form  of 
oath. 

See,  as  to  verification  of  bill, 
Williamson  v.  Wilson,  1  Bland 
(Md.)   418  (1826). 

A  bill  prayinp  for  a  receiver 
sworn  to  "as  being  true  to  the  best 
of  afiiant  's  knowledge  and  belief ' ' 
is  not  sufficiently  verified.  Smith- 
Dimmick  Lumber  Co.  v.  Teague,  119 
Ala.  .^85   (1898). 

37.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1735;  Troughber  v.  Akin,  109 
Tenn.  451  (1902);  Langdon  v.  Ver- 
mont, etc.,  Ry.  Co.,  54  Vt.  593 
(1882).  The  method  recommended 
is  by  petition.  In  such  case,  the 
petition  should  state  fully  and  par- 
ticularly the  grounds  upon  which 
the  receiver  is  asked,  and  described 
the  property  over  which  the  re- 
ceiver is  required. 

38.  Dan.  Ch.  Pr.  (6th  Am.  ed.) 
1736;  Lindsay  v.  Mortgage  Co.,  97 
Ala.  411  (1892-3);  Siegmund  v. 
Ascher,  37  111.  App.  122  (1890); 
Ladd  V.  Harvey,  21  N.  H.  154 
(1850) ;  Oakley  v.  Bank,  2  N.  J.  Eq. 
173  (1839);  Davis  v.  Reaves,  2  Lea 
(Tenn.)     649     (1879);     Krohn     v. 


Weinberger,  47  W.  Va.  127  (1899). 

39.  Alabama.  Ensley  Dev.  Co.  v. 
Powell,  147  Ala.  300  (1906);  Code 
1907,  Sec.  5726,  when  application  is 
made  in  vacation. 

Delaware.    Eq.  Rule  95. 

Florida.  Jacksonville  Ferry  Co. 
V.  Stockton,  40  Fla.   141    (1898). 

Illinois.  James  H.  Rice  Co.  v. 
McJohn,  244  111.  264   (1910). 

Maryland.  Baltimore  Skate  Mfg. 
Co.  v.  Randall,  112  Md.  411  (1910). 

Michigan.  Goldman  v.  Manistee 
Cir.  Judge,  155  Mich.  47  (1908); 
Turnbull  v.  Prentiss  Lumber  Co., 
55  Mich.  387  (1884). 

Mississippi.  Whitehead        v. 

Wooten,  43  Miss.  523  (1870). 

New  Jersey.  Tibbals  v.  Sargent, 
14  N.  J.  Eq.  449  (1862). 

Virginia.  Freudenheim  v.  Rohr, 
87  Va.  764  (1891). 

West  Virginia.  Baltimore  Bar- 
gain House  v.  St.  Clair,  58  W.  Va. 
565  (1906). 

United  States.  Huflf  v.  Bidwell, 
151  Fed.  563  (1907). 

The  notice  is  given  and  the  mo- 
tion set  for  hearing  in  the  usual 
way  as  in  other  interlocutory  ap- 
plications. See  Ch.  X,  Sees.  202, 
207,  ante,  pp.  380,  382. 

Statutes  or  rules  of  court  some- 
times provide  for  the  length  of  no- 
tice    required.       Ala.     Code,     Sec. 


RECEIVERS 


785 


appointed  uj^on  an  ex  parte  application  without  notice, 
except  in  cases  of  extreme  necessity,  as  for  instance 
where  there  is  imminent  danger  of  irreparable  injury.*'-' 
In  such  case  the  grounds  for  asking  the  ex  parte  appoint- 
ment should  be  stated  in  the  petition,'*^^^  or  in  affidavits 
in   support   of  the   application.'*'^^    In   some   states   the 


5726,  reasonable  notice;  Miss.  Code, 
Sec.  625,  at  least  five  days'  notice 
and  one  additional  day  for  every 
thirty  miles  of  travel;  Tenn.  Code, 
Sec.  6268,  reasonable  notice;  Fla. 
Rule  46,  sufficient  notice. 

The  necessity  of  notice  is  not  a 
rule  of  discretion  but  of  law. 
Fricker  v.  Peters  &  Co.,  21  Fla. 
254  (1885);  Moyers  v.  Coiner,  22 
Fla.  422    (1886). 

In  Maryland  no  advantage  can 
be  taken  of  the  want  of  notice  ex- 
cept by  an  appeal  from  the  order 
appointing  the  receiver.  Yosbrill 
v.  Hynson,  26  Md.  83  (1866). 

If  the  propriety  of  appointment 
without  notice  has  been  affirmed  on 
motion  to  discharge,  the  want  of 
notice  will  not  be  considered  on  ap- 
peal. Bristow  V.  Home  B.  Co.,  91 
Va.  18   (1895). 

40.  Alabama.  Maxwell  v.  Peters 
Shoe  Co.,  109  Ala.  371  (1895). 

Delaware.  Davis  v.  Browne,  2 
Del.  Ch.  188   (1859). 

Florida.  Jones  v.  Eakestraw,  59 
Fla.  537   (1910). 

Illinois.  Schmidt  v.  Johnson,  166 
111.  App.  623  (1912);  Baker  v. 
Backus,  32  111.  79  (1863). 

Maryland.  Mfg.  Co.  v.  Randall, 
112  Md.  411   (1910). 

Mississippi.  Benjamin  v.  Staples, 
93  Miss.  507   (1908). 

New  Jersey.  Flagler  v.  Blunt, 
32  N.  J.  Eq.  518  (1880). 

Virginia.  Freudenheim  v.  Rohr, 
87  Va.  764  (1891). 

Whitehouse  E.  P.  Vol.  1—50 


West  Virginia.  Baltimore  Bar- 
gain House  V.  St.  Clair,  58  W.  Va. 
565  (1906). 

United  States.  Huff  v.  Bidwell, 
151  Fed.  563   (1907). 

Where  the  adverse  party  has  ab- 
sconded or  cannot  be  found,  of 
course  the  rule  does  not  apply 
Dowling  V.  Hudson,  14  Beav.  (Eng 
Ch.)  423;  Craver  &  Steele  Mfg.  Co 
V.  Whitman,  62  Ilh  App.  313  (1896) 
Turnball  v.  Lumber  Co.,  55  Mich 
387   (1887). 

Where  the  parties  consent  or  the 
bill  served  on  the  defendant  spe- 
cially prays  for  the  appointment  of 
a  receiver  as  part  of  the  final  relief, 
this  is  of  course  equivalent  to  a 
notice.  See  Ward  v.  Hotel  Ran- 
dolph Co.,  67  W.  Va.  197  (1911). 

Previous  notice  is  not  necessary 
where  counsel  for  opposite  party 
are  present  in  court  when  the  mo- 
tion for  receiver  is  made.  McLean 
V.  LaFayette  Bank,  Fed.  Cas.  No. 
8887    (1844). 

40a.  Florence  Bank  v.  U.  S. 
Savings,  etc.,  Co.,  104  Ala.  297 
(1893);  Anderson  v.  Cecil,  86  Md. 
490  (1897) ;  Buckley  v.  Baldwin,  69 
Miss.  804  (1892). 

40b.  Jacksonville  Ferry  Co.  v. 
Stockton,  40  Fla.  141  (1898); 
Krohn  v.  Wineberger,  47  W.  Va. 
127  (1899);  Baltimore  Bargain 
House  v.  St.  Clair,  58  W.  Va.  565 
(1906). 


786 


EQUITY  PRACTICE 


party  obtaining  a  receiver  must  give  bond  to  tlie  other 
party.^'^'^ 

A  receiver  may  be  appointed  at  any  stage  of  the  cause 
when  required  for  the  protection  of  the  projDerty  against 
fraud  or  injury,  either  before  answer,"*^  upon  the  final 


40c.  In  Alabama,  by  the  code, 
the  order  appointing  a  receiver 
"must  require  complainant  to  enter 
into  bond."  Dreyspring  v.  Loeb, 
118  Ala.  263  (1896). 

In  Illinois,  the  party  making  ap- 
plication for  receiver  must  give 
bond  to  the  adverse  party  before 
appointment  will  be  made,  unless 
the  court,  for  good  cause  shown  and 
upon  notice  and  full  hearing,  is  of 
the  opinion  that  the  receiver  ought 
to  be  appointed  without  bond. 
Ayres  v.  Graham  Coal  &  Lumber 
Co.,  150  111.  App.  137  (1900). 

By  the  Mississippi  Code,  before" 
a  receiver  is  appointed  without  no- 
tice the  party  applying  therefor 
shall  give  bond  to  the  adverse  party 
and  the  damages  thereon  may  be  re- 
covered in  the  suit  in  the  same  man- 
ner as  damages  on  an  injunction 
bond  or  by  an  independent  suit. 
On  the  removal  of  a  receiver,  ap- 
pointed without  notice,  the  court 
may  take  a  bond  from  the  party 
against  whom  the  receiver  is  asked. 
Sec.  626. 

A  breach  of  the  bond  required  of 
the  plaintiff  in  Alabama  only  results 
when  a  decree  appointing  a  receiver 
is  vacated  on  the  ground  that  he 
was  improvidently  appointed,  and 
not  where  the  bill  is  dismissed  on 
the  merits.  Pagett  v.  Brooks,  140 
Ala.  257  (1904). 

The  bond  required  of  plaintiff  in 
Illinois  does  not  take  the  place  of 


the  receiver's  bond,  but  is  for  dam- 
ages resulting  and  attorneys'  fees 
incurred  by  the  appointment  and 
acts  of  the  receiver,  if  the  appoint- 
ment is  revoked  or  set  aside.  An- 
derson V.  Hultberg,  117  111.  App. 
231   (1904). 

A  material  omission  in  the  con- 
dition of  the  bond  to  the  adverse 
party  will  not  affect  the  validity  of 
the  appointment  but  may  be  cor- 
rected on  application.  Schmidt  v. 
Johnson,  166  111.  App.  623  (1912). 

41.  Metcalf  v.  Pulverloft,  1  V.  & 
B.  (Eng.  Ch.)  180;  Ladd  v.  Harvey, 
21  N.  H.  514  (1850);  Probasco  v. 
Probasco,  30  N.  J.  Eq.  109  (1878); 
Bloodgood  V.  Clark,  4  Paige  (N.  Y.) 
574  (1834);  Beecher  v.  Bininger,  7 
Blatchf.  173  (1870).  Even  before 
service  of  the  bill  on  defendant, 
since  suit  is  begun  in  equity  by  the 
filing  of  the  bill.  Dawling  v.  Hud- 
son, 14  Beav.  (Eng.  Ch.)  423;  Rus- 
sell V.  Bank,  40  111.  App.  385  (1890) ; 
People  V.  Norton,  1  Paige  (N.  Y.) 
17  (1828);  Water  Works  Co.  v. 
Trust  Co.,  93  Fed.  286  (1899). 
Upon  the  coming  in  of  answer. 
Dutton  V.  Thomas,  97  Mich.  93 
(1893). 

The  appointment  of  a  receiver 
pendente  lite  will  be  refused  where 
such  relief  would  grant  the  plain- 
tiffs all  they  would  be  entitled  to 
on  final  hearing.  Aldrich  v.  Union 
Bag  &  Paper  Co.,  87  Atl.  65  (N.  J. 
Ch.  1913). 


RECEIVERS 


787 


hearing  4  2  ^^  ^f^^j.  f^^^i  decree.^"  He  may  be  appointed 
in  vacation  as  well  as  during  a  term  of  court.^^^  The  ap- 
plication is  usually  made  by  the  plaintiff,  although  a 
defendant  may  sometimes  apply  for  a  receiver  against 
a  plaintiff  and  co-defendants  upon  an  answer  or  cross 
bill  alleging  grounds  for  affirmative  relief."'''  At  the  hear- 
ing upon  the  motion,  affidavits,  oral  testimony  or  other 
evidence  may  be  introduced  in  behalf  of  the  plaintiff  or 
of  the  defendant.4'^'  According  to  the  modern  practice  the 
receiver  is  appointed  by  the  court.  The  former  practice 
of  referring  the  selection  of  a  receiver  to  a  master  no 
longer  prevails.^*' 


42.  As  a  part  of  the  final  decree. 
Bowman  v.  Bell,  14  Sim.  (Eng.  Ch.) 
392;  Osborne  v.  Harvey,  1  Y.  &  G. 
(Eng.  Ch.)   116. 

43.  To  render  the  decree  ef- 
fective. Wright  V.  Vernon,  3 
Drew.  (Eng.  Ch.)  112;  Cooke 
V.  Gwyn,  2  Atk.  (Eng.  Ch.) 
690;  Wright  v.  Atkyns,  1  V.  &  B. 
(Eng.  Ch.)  31^;  Joliet  Bank  v. 
Steel  Co.,  174  111.  140  (1898);  Astor 
V.  Turner,  11  Paige  (N.  Y.)  437 
(1844);  Enochs  v.  Wilson,  11  Lea 
(Tenn.)  228  (1883);  Moran  v.  John- 
ston, 26  Gratt.  109  (1877).  Or  to 
protect  property  pending  appeal. 
Penn.  Mut.  Life  Ins.  Co.  v.  Semple, 
38  N.  J.  Eq.  315  (1884) ;  Pac.  R.  Co. 
v,  Ketchums,  95  U.  S.  1,  24  L.  ed. 
347   (1877). 

43a.  Ala.  Code,  Sec.  5726;  Kurd's 
111.  Stat.,  Chap.  37,  Sec.  67,  J.  &  A. 
•13030;  Mich.  Compiled  Laws,  Sec. 
447,  How.  Ann.  St.  (2d  ed.)  11964; 
Miss.  Code,  Sec.  627;  Smith  v. 
Butcher,  28  Gratt.  (Va.)  144  (1877). 

44.  Hiles  v.  Moore,  15  Beav. 
(Eng.  Ch.)  175;  Leddel  v.  Starr,  19 
N.  J.  Eq.  164  (1868).  Or  upon  the 
intervening  petition  of  another  re- 
ceiver.    Buswell  V.  Iron  Hall,  161 


Mass.  224  (1894) ;  Bidlock  v.  Mason, 
26  N.  J.  Eq.  230  (1875);  Rust  v. 
Waterworks  Co.,  70  Fed.  129 
(1895). 

But  in  Ruprecht  v.  Henrici,  113 
111.  App.  398  (1904),  it  was  held 
that  a  receiver  would  not  be  ap- 
pointed on  application  by  defend- 
ant in  his  answer,  without  a  cross 
bill  asking  some  affirmative  relief. 

45.  Rankin  v.  Rothschild,  78 
Mich.  10  (1889).  Sworn  answer 
may  be  read  in  opposition  to  plain- 
tiff's  affidavits.  Rankin  v.  Roths- 
child, supra.  A  receiver  will  not 
be  appointed  where  a  sworn  answer 
denies  the  equity  of  the  bill.  Wil- 
son V.  Maddox,  46  W.  Va.  641 
(1899).  The  court  after  making  an 
interlocutory  appointment  of  a  re- 
ceiver cannot  by  the  same  decree 
and  before  the  case  is  matured  for 
hearing,  make  a  final  disposition  of 
the  case.  Krohn  v.  Weinberger,  47 
W.  Va.  127  (1899). 

46.  Brush  v.  Blanchard,  19  111.  31 
(1857);  Gowan  v.  Jeffries,  2  Ashm. 
(Pa.)  296  (1840);  Miltenberger  v. 
Ry.  Co.,  106  U.  S.  286,  27  L.  ed.  117 
(1882). 


788  EQUITY  PRACTICE 

§  482.  Order  appointing  receiver.  The  order  or  decree 
of  a  court  appointing  a  receiver  slionld  correctly  name 
and  designate  the  person  to  be  appointed,  describe  tb.e 
property  over  which  he  is  to  have  control,*'  prescribe 
his  duties  in  relation  thereto,  and  instruct  him  so  far  as 
possible  as  to  the  manner  of  their  performance;  it  should 
require  him  to  give  bond  in  a  sufficient  amount  therein 
stated  for  the  faithful  discharge  of  his  duties;  *^  it  should 
order  him  to  keep  and  render  a  correct  account  of  all 
receipts  and  expenditures,  and  to  report  his  doings  to 
the  court  from  time  to  time  as  occasion  may  require;  and 
if  necessary  it  should  authorize  him  to  apply  to  the  court 
for  further  instructions.  The  order  may  also,  if  thought 
necessary,  contain  an  injunction  against  interfering  Avil:h 
the  receiver  by  suits  against  the  property  or  other-^ise.*^ 

The  receivership  takes  effect  from  the  date  of  the  order 
of  appointment  so  as  to  place  the  property  constructively 
in  custodia  I  eg  is  from  that  time,^'"  but  the  receiver  does 

47.  Either  generally,  Morey  v,  Co.,  10  Paige  (X.  T.)  290  (1843); 
Grant,  48  Mich.  326  (1882),  or  Temple  v.  Glasgow,  80  Fed.  441 
specifically.  Crow  v.  Wood,  13  Beav.       (1897).  • 

(Eng.    Ch.)    271,    as   occasion   may  50.  Atlas  Bank  v.  Xahant  Bank, 

require.     The  order  may  also  direct  23  Pick.  (Mass.)  480  (1839);  Sagi- 

a    conveyance   of   property   to   the  naw  County  Savings  Bank  v.  Duf- 

receiver  when  such  a  step  is  neces-  field,  157  Mich.  522  (1909);  McDon- 

sary.    Price  v.  Forrest,  54  N.  J.  Eq.  aid  v.  Charlestown,  etc.,  E.  Co.,  93 

669   (1896);  Chipman  v.  Sabbaton,  Tenn.  281  (1893);  Baldwin  v.  Spear 

7  Paige  (N.  Y.)  47  (1837).  Bros.,  79  Vt.  43  (1906);  Wiswall  v. 

48.  Mead  v.  Orrery,  3  Atk.  (Eng.  Sampson,  14  How.  (U.  S.)  52,  14  L. 
Ch.)   235;   Williamson  v.  Wilson,  1  ed.  322  (1852). 

Bland.  (Md.)  418  (1828);  Smith  v.  In  Fogg  v.  Order  of  Golden  Lion, 
Menominee  Circuit  Judge,  53  Mich.  159  Mass.  9,  12  (1893),  and  Bur- 
560  (1S84);  N.  H.  Eq.  Eule  110;  don  v.  Mass.  Safety  Fund  Asso., 
Grantham  v.  Lucas,  15  W.  Va.  425  147  Mass.  360,  368  (1888),  it  was 
(1879).  held  that  the  date  of  the  filing  of 
In  Maryland  the  probable  value  the  bill  fixes  the  rights  of  the  par- 
of  the  estate  and  assets  fixes  the  ties  for  purposes  of  distribution  of 
penalty  of  the  bond,  but  the  court  the  fund  in  the  hands  of  the  re- 
may  increase  the  penalty.  Acts  ceiver.  But  in  Jones  v.  Arena  Pub. 
1910,  Chap.  747.  Co.,   171   Mass.   22,   26    (1898),  the 

49.  Collins  v.  Colley,  11  Atl.  court  said:  "The  first  question  is 
118  (N.  J.  Eq.  1887);  Morgan  v.  E.  whether  the  rights  of  the  parties 


RECEIVERS 


789 


not  become  fully  qualified  and  entitled  to  the  custody  of 
the  property  and  the  administration  of  the  assets  until 


should  be  adjusted  as  of  the  date 
of  the  filing  of  the  bill,  or  as  of  the 
date  of  the  appointment  of  the  re- 
ceiver. In  similar  bills,  where  the 
jurisdiction  is  given  by  statute,  the 
usual  course  here  has  been  to  adopt 
the  date  of  the  filing  of  the  bill, 
or  of  the  issuing  of  the  injunction. 
Atlas  Bank  v.  Nahant  Bank,  23 
Pick.  (Mass.)  480  (1839);  Colt  v. 
Brown,  12  Gray  (Mass.)  233 
(1858);  Burdon  v.  Massachusetts 
Safety  Fund  Association,  147  Mass. 
360  (1888);  Merrill  v.  Common- 
wealth Ins.  Co.,  166  Mass.  238 
(1896);  Williams  v.  United  Eeserve 
Fund  Associates,  166  Mass.  450 
(1896).  The  date  of  the  filing  of 
the  bill  has  also  been  adopted  in 
some  instances  where  the  bill  was 
filed  under  general  equity  powers. 
See  Fogg  v.  United  Order  of  the 
Golden  Lion,  156  Mass.  431- (1892); 
Graham  v.  Mutual  Aid  Society,  161 
Mass.  357  (1894). 

"But  in  Merrill  v.  Common- 
wealth Ins.  Co.,  ubi  supra,  it  was 
said  that  the  court  had  no  occasion 
then  to  consider  what  the  rule 
should  be  in  cases  where  receivers 
are  appointed  under  general  equity 
powers,  and  we  think  there  is  no 
settled  rule  which  forbids  the  adop- 
tion of  the  date  of  the  appointment 
of  the  receiver  where  the  bill  is 
entertained  under  general  equity 
powers.  The  more  usual  rule  else- 
where seems  to  be  that  in  such 
cases  the  date  of  the  appointment 
of  the  receivers  should  be  adopted. 
High,  Receivers,  §§  136  et  seq.; 
Beach,  Receivers  (2d  ed.),  §§217 
et  seq.;  Smith,  Receiverships,  §  17; 
Gluck    &   Becker,   Receivers,    §89; 


Thompson,  Corp.,  §  6919.  Without 
intending  to  prescribe  a  fixed  rule, 
we  think  that  in  the  present  case 
the  adoption  of  the  date  of  the  ap- 
pointment of  the  receiver  will  be 
more  fair  to  all  parties  than  that 
of  the  filing  of  the  bill,  and  that 
the  decree  in  this  respect  should  be 
affirmed." 

In  Cobb  V.  Camden  Savings  Bank, 
106  Me.  178  (1909),  a  case  involv- 
ing proceedings  under  the  statute 
for  winding  up  of  a  corporation  and 
the  distribution  of  its  assets,  the 
above  cases  were  discussed  and  the 
court  held  that  in  this  case  the 
property  must  be  considered  to 
have  been  in  the  custody  and  pro- 
tection of  the  court  from  either  the 
time  of  filing  the  bill,  or  the  issuing 
of  process,  or  the  service  of  process, 
rather  than  from  the  time  of  ap- 
pointment of  the  receiver.  And  in 
Whipple  V,  Babcock,  18  R.  I.  611 
(1894),  in  a  proceeding  under  Pub- 
lic Statutes,  1882,  Chap.  237,  Sec. 
13,  the  filing  of  the  bill  and  not 
the  service  of  process  fixed  in  the 
receiver  the  right  to  take  posses- 
sion of  an  insolvent  debtor's  prop- 
erty attached  or  levied  on  within 
sixty  days  therefrom. 

In  Squire  v.  Princeton  Lighting 
Co.,  72  N.  J.  Eq.  883,  15  L.  R.  A. 
(N.  S.)  657  (1907),  it  was  held  that 
under  the  general  corporation  act 
the  property  of  an  insolvent  corpo- 
ration was  in  custodia  legis  from 
and  after  an  adjudication  of  insol- 
vency or  the  appointment  of  a  re- 
ceiver, and  not  from  the  time  of 
filing  the  bill  or  the  date  of  the 
order  to  show  cause. 


790  EQUITY  PRACTICE 

he  has  filed  his  bond.^^  Although  it  is  customary  to 
swear  a  receiver  to  the  faithful  discharge  of  his  duties, 
it  is  not  necessary,  and  may  be  dispensed  with  if  de- 
sired.^- 

Where  a  receiver  has  been  appointed  over  speci- 
fied property,  and  it  afterwards  becomes  necessary  to 
place  other  property  under  his  control,  his  appointment 
may  on  motion  be  extended  so  as  to  cover  the  addi- 
tional property.-^^  Where  two  suits  are  pending  in  the 
same  court  involving  the  same  property,  instead  of  ap- 
pointing two  receivers,  the  authority  of  the  receiver  a])- 
pointed  in  the  first  suit  should  be  extended  to  the  other 
suit.^^  The  receivership  continues  by  its  own  force  pend- 
ing appeal  with  out  any  order  of  court  for  that  purpose.^^ 

§  483.  Receiver's  bond.  As  a  general  rule  a  receiver 
is  required  before  entering  upon  his  duties  to  file  a  bond 
with  sufficient  sureties,  approved  by  the  court,  for  the 
amount  required  by  the  court  in  the  order  of  appoint- 
ment, conditioned  that  he  will  faithfully  discharge  his 
trust.^^   But  the  giving  of  a   bond  may  be  dispensed 

51.  Edwards  v.  Edwards,  L.  E.  assessors  of  damages  or  a  master  in 
2  Ch.  Div.  291;  Noyes  v.  Eich,  52  chancery  appointed  by  the  court." 
Me.  115  (1862) ;  Saginaw  County  But  statutes  sometimes  require  re- 
Savings  Bank  v.  Duffield,  157  Mich.  ceivers  to  be  sworn.  See  Maine 
522  (1909);  Home  v.  Pere  Mar-  Public  Laws,  1905,  Chap.  85,  Sec.  2. 
quette  E.  Co.,  151  Fed.  627  (1907).  53.  Parker  v.  Browning,  8  Paige 
See  Farmers'  Bank  v.  Beaston,  7  (X.  Y.)  388  (1840);  Mercantile 
Gill.  &  J.  (Md.)  421,  28  Am.  Dec.  Trust  Co.  v.  E.  Co.,  41  Fed.  8 
226  (1836).  (1890). 

52.  In  Am.  Bank  v.  Cooper,  54  54.  State  v.  Jacksonville,  etc.,  E. 
Me.  438  (1867),  the  court  said:  Co.,  15  Fla.  201  (1875);  Howell  v. 
"Nor  does  the  omission  of  the  re-  Eipley,  10  Paige  (N.  Y.)  43  (1843); 
ceivers  to  be  sworn  vitiate  their  Loyd  v.  E.  Co.,  65  Fed.  351  (1895). 
proceedings.  They  are  appointed  55.  Ex  parte  Hood,  107  Ala.  520 
by  the  court  and  are  the  officers  of  (1894);  Att 'y  Gen.  v.  Bank  of  Co- 
the  court.  The  statute  does  not  lumbia,  1  Paige  (X.  Y.)  511  (1829); 
require  them  to  be  sworn.  Their  Grant  v.  Ins.  Co.,  121  U.  S.  105, 
proceedings  are  subject  to  revision  30  L.  ed.  905  (1886). 

by  the  court,  and  the  oath  may  be  56.  Meav  v.  Orrery,  3  Atk.  (Eng. 

dispensed  with  for  the  same  reason  Ch.)  206;  Xoyes  v.  Eich,  52  Me.  115 
that  it  is  not  required  in  the  case  of      (1862);    Williamson    v.    Wilson,    1 


RECEIVERS 


791 


with  by  statute,  by  consent  of  parties,^^  or  when  plainly 
unnecessar)^^^  When  a  bond  is  expressly  required  by 
the  order,  the  receiver  is  not  entitled  to  possession  and 
does  not  become  fully  qualified  to  act  as  receiver  till  the 
bond  has  been  filed.^^  But  where  not  required  by  the 
order,  the  fact  that  bond  is  not  given  is  no  defence  to  a 
suit  by  such  receiver,^**  for  although  a  receiver  has  given 
no  bond,  it  is  held  that  he  may  be  a  receiver  cle  facto,  so 
that  his  authority  to  sue  cannot  be  questioned  collat- 
erally."^ If  the  security  given  by  a  receiver  becomes 
insufficient,  he  may  be  compelled  to  give  additional  se- 
curity or  the  court  will  remove  him.''^  Where  a  bond, 
though  duly  executed,  has  not  been  filed  through  inad- 
vertence, the  court  may  permit  it  to  be  filed  nunc  pro 


Bland  (Md.)  418  (1828);  Com.  v. 
Gould,  118  Mass.  300,  301  (1875), 
(giving  condition  of  bond);  Carper 
V.  Hawkins,  8  W.  Va.  304  (1875). 
See  also  Maine  Public  Laws,  1905, 
Chap.  85,  Sec.  2,  dissolution  of  cor- 
poration; Miss.  Code,  Sec.  630; 
Tenn.  Code,  Sec.  6769;  Mich.  Eq. 
Eule  31,  suits  on  creditors'  bill; 
N.  H.  Eq.  Rule  110. 

An  administrator,  if  appointed 
receiver,  must  give  a  receiver's 
bond.  Miller  v.  Jones,  39  111.  54 
(1865). 

57.  Manners  v.  Furze,  11  Beav 
(Eng.  Ch.)  30;  Hibbert  v.  Hibbcrt 
3  Mer.  (Eng.  Ch.)  681;  Ridout  v 
Earl  of  Plymouth,  1  Dick.  (Eng 
Ch.)  68.  In  such  case  his  own  rec 
ognizance  will  be  accepted  as  suffi 
cient. 

58.  High  on  Receivers,  §  120,  cit- 
ing Banks  v.  Potter,  21  How.  Pr. 
469,  where  a  receiver  had  in  prev- 
ious proceedings  connected  with 
the  one  in  question  given  adequate 
security. 

Receivers'  bonds  are  not  required 


of  officers  whose  official  bonds  cover 
the  duties  imposed  upon  them  as 
receivers.  Smith  v.  Butcher,  28 
Gratt.  (Va.)  144  (1877)  (sheriff). 
Nor  of  trust  companies.  Goff  v. 
Goff,  54  W.  Va.  364  (1903). 

59.  Williamson  v.  Wilson,  1 
Bland  (Md.)  418  (1826);  Davis  v. 
Sueed,  33  Gratt.  (Va.)  705  (1880); 
Woods  V.  Ellis,  85  Va.  471  (1888); 
Carper  v.  Hawkins,  8  W.  Va.  291 
(1875). 

60.  Wilson  V.  Welch,  157  Mass. 
77  (1892).  In  such  ease  any  person 
interested  may  apply  to  the  court 
to  have  him  give  one  if  thought 
necessary. 

61.  Hamilton  v.  Simon,  178  Fed. 
130   (1910). 

62.  Blois  V.  Betts,  1  Dick.  (Eng. 
Ch.)  336;  Cagger  v.  Howard,  1 
Barb.  Ch.  368  (1868);  Harris  v. 
Hibbard,  71  Atl.  737  (N.  J.  Ch. 
1908),  foreign  receiver;  Shackle- 
ford  V.  Shackleford,  32  Gratt. 
(Va.)  481  (1879);  and  see  Miss. 
Code,  Sec.  634. 


792 


EQUITY  PRACTICE 


tunc.^^  The  liability  of  a  surety  upon  the  receiver's  bond 
becomes  absolute  upon  the  failure  of  the  receiver  faith- 
fully to  discharge  his  duties  according  to  the  terms  of 
the  condition.*'^  The  proper  method  of  procedure  in  or- 
der to  establish  the  breach  is  to  apply  to  the  court  for  a 
rule  upon  the  receiver  to  render  his  account  and  pay  over 
any  balance  of  money  found  due.*'^  Upon  his  failure  to 
comply  with  such  order,  the  party  aggrieved  must  then 
obtain  leave  of  court  to  sue  on  the  bond  ^^  and  on  obtain- 
ing such  leave,  in  order  to  enforce  the  liability  against 
the  sureties,  it  is  held  that  his  only  course  is  to  bring 
an  independent  action  at  law  against  the  sureties.*'^ 

§  484.  Instructions  to  receivers.  A  receiver,  as  an  offi- 
cer of  the  court,  is  subject  at  all  times  to  the  orders  of 
the  court,^^  and  is  entitled  at  any  time  when  it  may  seem 
to  him  necessary  to  apply  to  the  court  for  instructions  as 


63.  Vaughan  v.  Vaughan,  Dick. 
(Eng.  Ch.)  90;  Whiteside  v.  Pun- 
dergast,  2  Barb.  Ch.  (N.  Y.)  471 
(1847). 

64.  Commonwealth  v.  Gould,  118 
Mass.  300  (1875);  Boss  v.  Wil- 
liams, 11  Heisk.  (Tenn.)  410 
(1872). 

65.  Ludgater  v.  Channell,  15 
Sim.  (Eng.  Ch.)  479;  State  v.  Gib- 
son, 21  Ark.  140  (1860);  Ward  v. 
Schlosser,  111  Md.  528  (1909); 
Atkinson  v.  Smith,  89  N.  C.  72 
(1883);  French  v.  Dauchey,  134 
N.  Y.  543  (1892). 

66.  Ludgater  v,  Channell,  15 
Sim.  (Eng.  Ch.)  479;  Davis  v. 
Snead,  33  Gratt.  (Va.)  705  (1880); 
Kirker  v.  Owings,  98  Fed.  499 
(1899). 

67.  Thurman  v.  Morgan,  79  Va, 
367  (1884);  Kirker  v.  Owings,  98 
Fed.  499  (1899).  But  he  may  pro- 
ceed against  the  receiver  by  pro- 
cess   for    contempt.      Cartwright  's 


Case,  114  Mass.  230  (1873).  It  is 
also  held  that  he  may  put  the  bond 
in  suit  by  a  scire  facias  in  the  court 
of  chancery  which  appointed  the 
receiver.  Williamson  v.  Wilson,  1 
Bland  (Md.)  418  (1828). 

Where  power  is  reserved  in  the 
bond  itself  or  by  statute  or  rule 
of  court,  the  court  may  enter  a 
summary  decree  in  the  equity  suit 
against  the  surety.  Kirker  v. 
Owings,  supra;  State  Bank  v.  Dun- 
can, 52  Miss.  740  (1876). 

If  the  sureties  have  themselves 
received  the  trust  funds  or  a  por- 
tion thereof,  they  are  to  that  extent 
amenable  to  the  court  before  which 
the  receivership  action  is  pending 
and  may  be  summarily  proceeded 
against  therein.  Seidenbach  v. 
Denklespeil,  11  Lea  (Tenn.)  297 
(1883);  Thurman  v.  Morgan,  79  Va. 
367  (1884). 

68.  Illinois.  Hooper  v.  Winston, 
24  111.  354  (1860). 


RECEIVERS 


793 


to  tlie  proper  performance  of  his  duties.^  Indeed,  in  all 
matters  where  his  action  may  seriously  affect  the  prop- 
erty under  his  charge,  it  is  his  duty  to  apply  to  the  court 
for  specific  authority  and  directions  before  taking  any 
steps.^  Such  application  should  be  made  by  petition^ 
upon  which  an  order  is  issued  by  the  court  expressly  au- 
thorizing and  directing  the  acts  to  be  done  by  the  re- 
ceiver. This  order  then  stands  upon  the  record  as  the 
judicial  sanction  for  the  course  taken,  and  if  the  parties 
in  interest  are  heard  thereon,  it  becomes  binding  upon 
them,  but  if  only  the  receiver  is  heard,  he  only  is  bound.^ 
§  485.  Title  of  receiver.  The  order  of  court  appointing 
a  receiver  does  not  i^er  se  change  the  title  to  the  prop- 
erty and  vest  it  in  the  receiver.^    The  legal  title  still  re- 


1.  Swartz  V.  Keystone  Oil  Co., 
153  Pa.  283  (1893);  Grant  v.  Phoe- 
nix Mut.  Life  Ins.  Co.,  121  U.  S. 
105,  30  L.  ed.  909  (1887). 

2.  Massachusetts.  Ellis  v.  Bos- 
ton, etc.,  R.  Co.,  107  Mass.  1,  28 
(1871). 

Mississippi.     Code,  Sec.  628. 

New  Jersey.  Cammaek  v.  John- 
son, 2  N.  J.  E.  163  (1839). 

Pennsylvania.  Schwartz  v.  Key- 
stone Oil  Co.,  153  Pa.  283  (1893). 

Virginia.  Lyle  v.  Sarvey,  104 
Va.   229    (1905). 

West  Virginia.  Baltimore,  etc., 
R.  Co.  V.  Vanderwerker,  33  W.  Va. 
191    (1889). 

3.  Swartz  v.  Keystone  Oil  Co., 
153  Pa.  283  (1893). 

4.  Ex  parte  Koehler,  23  Fed.  529 
(1885);  Mo.  Pac.  Ry.  Co.  v.  Ry. 
Co.,  31  Fed.  862  (1887). 

5.  Alabama.  Southern  Granite 
Co.  V.  Wadsworth,  115  Ala.  570, 
573   (1896). 

Delaware.  Stockbridge  v,  Beck- 
with,  6  Del.  Ch.  72  (1887). 

Illinois.  Nevitt  v.  Woodburn, 
190  111.  203  (1901);  Thomas  v.  Van 


Meter,  164  HI.  304  (1896) ;  Heffron 
V.   Gage,  149  111.  182    (1894). 

Maryland.  Gaither  v.  Stock- 
bridge,  67  Md.  222  (1887). 

Massachusetts.  Harrison  v.  J.  J. 
Warren  Co.,  183  Mass.  123  (1903); 
Haywood  v.  Leeson,  176  Mass.  310, 
49  L.  R.  A.  725  (1900);  Bell  v. 
Amer.  Protective  League,  163  Mass. 
558,  562,  28  L.  R.  A.  454,  47  Am. 
St.  Rep.  481  (1895). 

Michigan.  Longley  v.  Amazon 
Hosiery  Co.,  128  Mich.  194,  198 
(1901);  Montgomery  v.  Merrill,  18 
Mich.  338  (1869). 

Mississippi.  Newell  v.  Fisher,  24 
Miss.  392  (1852). 

Pennsylvania.  Singerly  v.  Fox, 
75  Pa.  112  (1874). 

Vermont.  Murtey  v.  Allen,  71 
Vt.  377,  381,  76  Am.  St.  Rep.  779 
(1899). 

Virginia.  Georgia  Home  Ins.  Co. 
V.  Bartlett,  91  Va.  305,  313,  50  Am. 
St.  Rep.  832  (1895). 

United  States.  Quincy,  etc.,  R. 
Co.  V.  Humphreys,  145  U.  S.  82,  36 
L.  ed.  632  (1891);  Thompson  v. 
Phenix  Ins.  Co.,  136  U.  S.  287,  36  L. 


794 


EQUITY  PRACTICE 


mains  in  tlie  orisrinal  owner,  and  the  receiver  acquires 
merely  the  right  of  possession  as  an  oflScer  of  the  court. 
But  statutes  often  provide  in  proceedings  for  the  disso- 
lution of  corporations  that  the  decree  of  appointment 
ipso  facto  vests  the  title  to  the  property  in  the  receiver.'* 
§  486.  Possession  of  receiver.  A  receiver  becomes  en- 
titled to  the  possession  of  the  property  immediately  upon 
filing  his  bond.'  It  then  becomes  his  duty  to  take  posses- 
sion of  the  property.*^  and  he  must  use  due  diligence  for 


ed.  408  (1690):  Union  Xat.  Bank 
V.  Bank  of  Kansas  atr,  136  U.  S. 
233,  34  L.  ed.  341  (1890);  Peniu 
Steel  Co.  T.  New  York  City  By. 
Co.,  198  Fed.  721  (1912);  Porter 
V.  Boyd,  171  Fed.  305  (1909); 
Hamilton  t.  B^gs  Co.,  171  Fed- 
157  (1909):  Coler  v.  Grainger 
County,  74  Fed.  16   (1896). 

It  is  lield  in  Massachusetts  that 
a  eourt  of  equity  cannot  vest  the 
title  to  the  property  in  the  reeeiTer 
in  the  absence  of  statutory  powers 
expressed  or  implied,  by  the  mere 
force  of  its  decree  alone.  This 
can  only  be  done  by  compelling  the 
defendant  to  transfer  the  title. 
Wilson  V.  WUson-Martin  Co.,  151 
Mass.  515  (1890);  Wilson  v.  Welch, 
157  Mass.  77  (1892).  See  extract 
from  opinion  of  court  in  this  case, 
note  69,  post,  p.  806.  But  com- 
pare Noyes  v.  Rich,  52  Me.  115 
(1862);  Baker  v.  Cooper,  57  Me. 
388  (1869);  Ellis  v.  R.  Co.,  107 
Mass.  1  (1871);  Skinner  v.  Ter- 
hune,  45  N.  J.  Eq.  565  (1889). 

A  formal  conveyance  is  neces- 
sary to  vest  title  to  real  estate. 
St.  Louis  &  Sandoval,  etc^  Co., 
V.  Sandoval,  etc.,  Co.,  Ill  HI.  32 
(1884). 

A  receiver  does  not  take  title  to 
the  expired  term  of  a  lease  and  in 


this  respect  differs  from  an  assignee 
in  bankruptcy  who  is  vested  with 
legal  title.  Dietrick  v.  O'Brien, 
89  AtL  717  (Md.  1914). 

6.  See  Colton  v.  Mayer,  90  Md. 
711,  74  Am.  St.  Beports  456,  47 
L.  B.  A.  617  (1900 ) :  Freeholder  of 
Middlesex  Co.  v.  State  Bank  at 
New  Brunswick,  29  X.  J.  Eq.  268 
(lS7Sj,  and  Squire  v.  Princeton 
Lighting  Co.-,  72  X.  J.  Eq.  SS3,  15 
L.  B.  A.  (X.  S.)  657  (1907).  In 
Cobb  V.  Camden  Savings  Bank,  106 
Me.  178  (1909),  the  receiver  was 
held  to  have  title  by  force  of  the 
decree  even  though  the  statute  did 
not  expressly  vest  title  in  the  re- 
ceiver. 

Title  to  the  assets  of  a  national 
bank  is  transferred  to  the  receiver 
by  the  closing  of  the  bank  by 
order  of  the  bank  examiner,  the 
appointment  of  a  receiver,  and  a 
decree  dissolving  the  bank.  Scott 
V.  Armstrong,  146  U.  S.  499,  36  L. 
ed.  1059   (1892). 

7.  Xoyes  v.  Rich,  52  Me.  115 
(1862);  Saginaw  County  Savings 
Bank  v.  Sheffield,  157  Mich.  522 
(1909);  Home  v.  Pere  Marquette 
R.  Co.,  151  Fed.  627  (1907). 

8.  Morrill  v.  Noyes,  56  Me.  463 
(1863). 


KECEIVERS 


795 


that  purpose.^  If  the  person  who  has  possession  refuses 
to  deliver  it  up,  if  he  is  a  party  to  the  bill,  he  may  be 
proceeded  against  for  a  contempt.  If  he  is  not  a  party, 
he  may  be  made  one  for  that  purpose,  or  the  receiver,  by 
leave  of  coui't,  may  proceed  to  recover  possession  by  a 
suit  at  law.^°  A  receiver's  right  of  possession,  however, 
extends  only  to  the  property  which  is  the  subject  matter 
of  litigation.^^  Thus  under  a  general  creditors'  bill,  the 
receiver  is  entitled  to  the  whole  of  the  property,^^  but 
where  a  bill  is  brought  on  behalf  of  a  few  creditors  only, 
to  reach  certain  specified  property  mortgaged  in  trust 
for  their  benefit,  the  right  of  the  plaintiff  and  therefore 
that  of  the  receiver  is  necessarily  limited  thereto.^^ 

The  possession  of  the  receiver  when  acquired  is  the  pos- 
session of  the  court  and  any  attempt  to  interfere  with  it, 
without  leave  of  court,  is  a  contempt.^^    The  court  which 


9.  Clapp  V.  Clapp,  49  Hun  (N. 
Y.),   195    (1888). 

10.  Morrill  v.  Noyes,  56  Me.  463, 
96  Am.  Dec.  486  (1863);  Hamilton 
V.  Harris,  72  Mich.  56  (1888); 
Wynne  v.  Newborough,  3  Bro.  Ch. 
88;  Parker  v.  Browning,  8  Paige 
(N.  Y.),  388  (1840);  Green  v.  Win- 
ter, 1  Johns.  Ch.  (N.  Y.)  60  (1814). 

A  receiver  may  obtain  a  rule  to 
show  cause  why  a  person  should  not 
surrender  property  to  the  receiver. 
Sullivan  v.  Colby,  71  Fed.  460 
(1896);  Home  v.  Pere  Marquette 
E.  Co.,  151  Fed.  626   (1907). 

11.  Gillespie  v.  Steel  Co.,  62  111. 
App.  594  (1895);  Noyes  v.  Eich, 
52  Me.   115   (1863). 

12.  Noyes  v.  Eich,  52  Me.  115 
(1863);  Chipman  v.  Sabbaton,  7 
Paige   (N.  Y.)  47   (1838). 

13.  Noyes  v.  Eich,  52  Me.  115 
.(1863). 

14.  Florida.  McKinnon-Young 
Co.  V.  Stockton,  53  Fla.  734  (1907). 


Illinois.  People  v.  Weigley,  155 
111.  491  (1895). 

Maine.  Morrill  v.  Noyes,  56  Me. 
458,  96  Am.  Dec.  486   (1863). 

Michigan.     Smith  v.  Wayne  Cir- 
cuit Judge,  84  Mich.  564  (1891). 
■     Rhode  Island.     Chaffee  v.  Quid- 
nick  Co.,  13  E.  I.  442  (1881). 

Tennessee.  Young  v.  Vanhooser, 
6  Lea  136  (1880). 

Vermont.  Vt.,  etc.,  E.  Co.  v.  Cen- 
tral E.  Co.,  46  Vt.  792   (1873). 

Virginia.  Thornton  v.  Washing- 
ton Savings  Bank,  76  Va.  432 
(1882). 

United  States.  Hitz  v.  Jenks, 
185  U.  S.  155,  46  L.  ed.  85  (1901). 

Interference  with  possession  of 
receiver  is  not  a  contempt  where 
the  court  had  no  jurisdiction  to 
appoint  him.  People  v.  Weigley, 
155  111.  491   (1895). 

The  usual  punishment  for  such 
interference  is  by  attachment  for 
contempt  as  in  the  case  of  in- 
junction.    Noe  V.  Gibson,  7  Paige 


796 


EQUITY  PRACTICE 


first  secures  possession  of  the  subject  matter  of  litigation, 
thereby  acquires  jurisdiction  of  such  property,  and  will 
retain  it  and  protect  its  receiver  in  such  possession  as 
against  a  receiver  appointed  by  another  court  of  con- 
current jurisdiction.^^ 

In  other  cases  of  interference  the  rule  is  still  broader. 
After  the  appointment  of  a  receiver,  and  even  before  he 
files  his  bond  or  obtains  actual  possession,^^  the  property 
is  regarded  as  in  cusfodia  legis,  and  possession,  actual 
or  constinictive,  thus  obtained,  is  not  to  be  disturbed 
without  leave,  either  by  attachment,"  levy  of  execu- 
tion,^* ejectment, ^^  trespass,-^  distress  for  rent,-^ 
strikes,^-  or  any  like  method  of  interference. 


(N.  Y.)  513  (1839).  Property  in 
the  hands  of  a  receiver  may  be  pro- 
tected by  an  injunction.  Ex  parte 
Tyler,  149  U.  S.  164,  37  L.  ed.  689 
(1892).  An  unauthorized  interfer- 
ence cannot  be  justified  by  the  fact 
that  appointment  was  illegally  or. 
improperly  made.  Eussell  v.  E.  Co., 
3  Mac.  &  G.  104  (Eng.  Ch.).  Any 
actual  knowledge  of  the  order  of 
appointment  is  sufficient  to  render 
a  person  liable  for  such  interfer- 
ence. Hull  V.  Thomas,  3  Edw.  Ch. 
(N.  Y.)   236  (1838). 

Relief  from  interference  with 
assets  may  be  obtained  by  petition 
instead  of  by  bill  against  the  wrong 
doer,  whether  the  assets  have  ever 
been  in  the  receiver's  possession 
or  not.  Bibber- White  Co.  v.  White 
River  Valley  Electric  Co.,  107  Fed. 
176  (1901). 

It  is  the  duty  of  the  receiver  to 
retain  his  possession  when  acquired 
until  otherwise  ordered  by  the 
court.  Morrill  v.  Noyes,  56  Me. 
458,  96  Am.  Dec.  486   (1863). 

Since  the  property  is  in  custodia 
legis,  the  court  upon  termination  of 
the  suit  has  jurisdiction  to  restore 


it  to  the  owner  or  the  person  having 
legal  title.  Beardsley  Co.  v.  V.  E. 
Ashdown  &  Co.,  80  S.  E.  128  (W. 
Va.  1914). 

15.  Byers  v.  McAuley,  149  U.  S. 
608,  37  L.  ed.  867  (1892),  and  eases 
cited;  Palmer  v.  State  of  Texas, 
212  U.  S.  118,  53  L.  ed.  435  (1909). 

16.  Wiswall  V.  Sampson,  14  How. 
52,  14  L.  ed.  322   (1852). 

17.  Columbian  Book  Co.  v.  De 
Golyer,  115  Mass.  67  (1874);  Com. 
V.  Ins.  Co.,  119  Mass.  155  (1875). 

18.  Russell  V.  R.  Co.,  3  Macn.  & 
G.  106  (Eng.  Ch.);  Jackson  v.  Lo- 
hee,  114  111.  287  (1885);  Hills  v. 
Parker,  111  Mass.  508  (1873);  Wis- 
wall V.  Sampson,  14  How.  52,  14  L. 
ed.  322  (1852);  Merc.  Trust  Co.  v. 
R.  Co.,  79  Fed.  389  (1897). 

19.  Angel  v.  Smith,  9  Ves.  (Eng. 
Ch.)  335;  Potter  v.  Brick  Co.,  47 
N.  .J.  Eq.  442  (1890). 

20.  Parker  v.  Browning,  8  Paige 
(X.  Y.)   388   (1840). 

21.  Hills  V.  Parker,  111  Mass. 
508  (1873);  Noe  v.  Gibson,  7  Paige 
(N.  Y.)  513   (1839). 

22.  Arthur  v.  Oakes,  63  Fed.  310 
(1894). 


RECEIVERS 


797 


The  receiver's  possession,  however,  is  subject  to  all 
valid  contracts,  mortgages  and  liens  existing  at  the  time 
of  his  appointment.-^  So  a  valid  attachment  of  the  prop- 
erty of  a  corporation  is  not  discharged  by  the  subse- 
quent appointment  of  a  receiver  of  the  corporation. ^^ 

§  487.  Powers  of  receivers.  A  receiver  possesses  only 
such  powers  as  are  conferred  upon  him  by  statute,  by  the 
order  of  appointment,  or  by  the  rules  and  customs  of  a 
court  of  chancery.-^     Subject  to  such  limitations  and  to 


23.  Alabama.  Talledega  Mercan- 
tile Co.  V.  Jenifer  Iron  Co.,  102 
Ala.  259  (1893). 

Illinois.  Mulcahey  v.  Strauss, 
151  111.  70  (1894). 

Massachusetts.  Kittredge  v. 
Osgood,  161  Mass.  384  (1894);  Bus- 
well  V.  Iron  Hall,  161  Mass.  224 
(1894);  Wall  v.  Piatt,  169  Mass. 
398,  401   (1897). 

New  Jersey.  Kirkpatrick  v.  Mc- 
Elroy,  41  N.  J.  Eq.  539  (1886). 

Vermont.  Baldwin  v.  Spear,  79 
Vt.  43  (1905). 

United  States.  Kneeland  v. 
Trust  Co.,  136  U.  S.  89,  34  L.  ed. 
379    (1889). 

A  receiver  of  an  insolvent  cor- 
poration appointed  at  the  suit  of 
general  creditors  has  the  rights  of 
an  attaching  or  levying  creditor  as 
to  property  of  the  corporation. 
H.  K.  Porter  Co.  v.  Boyd,  171  Fed. 
305  (1909). 

24.  Cobb  V.  Camden  Savings 
Bank,  106  Me.  178  (1909);  Kitt- 
redge V.  Osgood,  161  Mass.  384 
(1894);  Huling  v.  Jones,  63  W.  A^a. 
696  (1908).  Where  the  sheriff  has 
taken  possession  under  such  attach- 
ment, he  is  entitled  to  retain  it 
against  the  receiver.  Peace  v. 
Smith,  63  111.  App.  411   (1896). 

The  rule  stated  in  the  text  is 
now  changed  by  statute  in  Massa- 


chusetts and  in  some  other  states, 
where  it  is  provided  that  on  a  bill 
for  the  appointment  of  a  receiver 
of  an  insolvent  corporation,  all  at- 
tachments made  within  a  certain 
number  of  days  before  the  filing 
of  such  bill  will  be  dissolved.  Sec- 
ond National  Bank  v.  J.  C.  Lappe 
Tanning  Co.,  198  Mass.  159  (1908); 
Maine  Public  Laws,  1905,  Chap.  85, 
Sec.  2.  The  Massachusetts  stat- 
utes have  been  held  to  apply  to  the 
appointment  of  ancillary  receivers. 
See  Second  National  Bank  v.  J.  C. 
Lappe  Tanning  Co.,  supra. 

An  attachment  made  after  the 
court  took  charge  of  the  property 
in  insolvency  proceedings  will  not 
give  a  lien,  though  the  receiver  had 
not  taken  actual  manual  possession 
of  it.  McDonald  v.  Charleston, 
etc.,  R.  Co.,  93  Tenn.  281  (1893). 

25.  Delaware.  Stockbridge  v. 
Beckwith,  6  Del.   Chan.  72   (1887). 

Illinois.  Young  v.  Stevenson,  180 
111.  608,  72  Am.  St.  Rep.  236  (1899), 

Maryland.  Gaither  v.  Stock- 
bridge,  67  Md.  222  (1887). 

Vermont.  Reynolds  v.  Pettijohn, 
79  Vt.  377   (1884). 

West  Virginia.  Lazear  v.  Fay 
Co.,  65  W.  Va.  105  (1909). 

United  States.  Booth  v.  Clark, 
17  How.  322,  15  L.  ed.  164  (1854). 


798 


EQUITY  PRACTICE 


the  directions  of  the  court,  it  may  be  stated  as  a  gen- 
eral proposition  that  a  receiver  has  all  the  legal  powers 
necessar}'  or  convenient  for  the  protection  and  preserva- 
tion of  the  property  over  which  he  is  appointed.  It  would 
be  impossible  therefore  to  enumerate  all  such  powers 
specifically  and  in  detail,  but  in  brief  it  may  be  said 
that  a  receiver,  by  authority  of  court  either  general  or 
special,  has  power  to  bring -"^  and  defend  suits;-"  col- 
lect stock  subscriptions;-^  compromise  debts;-''  per- 
form existing  contracts ^"^   (in  certain  cases);  continue 


And  see  Sec.  474,  note  Ic,  anie, 
p.  773. 

It  was  held  in  Henry  v.  Henry, 
103  Ala.  582  (1893),  that  where 
the  order  of  court  confers  specific 
powers,  all  others  are  excluded.  All 
persons  must  take  notice  of  the 
fact  that  a  receiver  is  possessed  of 
only  limited  powers.  Lehigh  Coal 
Co.  V.  E.  Co.,  35  N.  J.  Eq.  426 
(1882). 

In  Lincoln  v.  Fiteh,  42  Me.  4o6 
(1856),  it  was  held  that  receivers 
of  a  bank  appointed  to  close  its 
concerns,  have  no  rights  superior  to 
those  which  the  bank  would  have 
had  if  its  management  had  re- 
mained in  the  hands  of  its  di- 
rectors; and  the  liabilities  of  third 
parties  to  the  bank  are  not  in- 
creased or  otherwise  varied  by  the 
appointment  of  receivers. 

In  Quincy,  Missouri  &  Pacific  R. 
Co.  v.  Humphreys,  145  U.  S.  82 
(1891),  it  was  held  that  the  powers 
of  a  receiver  were  more  restricted 
than  those  of  an  assignee  in 
insolvency. 

A  statutory  receiver  has  only  the 
powers  conferred  by  statute.  Flor- 
ence Gas,  etc.,  Co.  v.  Hanley,  101 
Ala.  15  (1892);  Runyon  v.  Farmers' 
&  M.  Bank,  4  N.  J.  Eq.  480  (1845). 

26.  Sec.  489,  post,  p.  804. 


27.  Sec.  490,  post,  p.  808. 

28.  Frank  v.  Morrison,  58  Md. 
423  (1882);  Farmers'  Bank  v. 
Jenks,  7  Met.  (Mass.)  592  (1844). 

29.  Be  Croton  Ins.  Co.,  3  Barb. 
(X.  Y.)  Ch.  642  (1848). 

This  power  is  sometimes  given  by 
rule  of  court.  See  Mich.  Eq.  Rule 
31. 

Compromises  are  subject  to  the 
approval  of  the  court.  Jackson  v. 
Horton,  126  HI.  566  (1888);  Alex- 
ander v.  Md.  Trust  Co.,  106  Md. 
170   (1907). 

Power  to  compromise  may  be 
implied  from  statutory  powers.  In- 
surance Commissioner  v.  C.  M.  In- 
surance Co.,  20  R.  L  7  (1897). 

30.  Spencer  v.  Worlds  Columbian 
Exposition,  163  III.  117  (1896); 
Wall  V.  Piatt,  169  Mass.  398  (1897). 
Such  a  power  is  not  generally  au- 
thorized by  the  court  except  where 
the  performance  of  the  contract  is 
secured  by  a  lien  on  the  receiver- 
ship property.  Smith  on  Receiver- 
ships, Sec.  35.  But  the  court  may 
order  the  receiver  to  complete  un- 
finished contracts  where  the  inter- 
ests of  all  parties  will  be  best 
served  thereby.  Florence  Gas,  Elec- 
tric Light  and  Power  Co.  v.  Hanby, 
101  Ala.  15  (1892);  Suydam  v. 
Bank,  3  N.  J.  Eq.  114  (1834);  Oly- 


RECEIVERS 


799 


business;  ^^    lease ;^^     sell;^^     purchase;  ^^     make     re- 


phant  V.  Ore  Co.,  28  Fed.  729 
(1886).  And  the  receiver  may  ex- 
periment with  the  contract  to  see 
whether  it  is  profitable  for  him  to 
perform  it.  Butterworth  v.  Deg- 
non  Construction  Co.,  208  Fed.  381 
(1914). 

31.  The  court  has  the  power  to 
order  the  receiver  to  continue  the 
business  when  necessary  for  the 
preservation      of      the      property. 

Alabama.  American  Pig  Iron 
Storage  Warrant  Co.  v.  German, 
126  Ala.  194,  33  Am.  St.  Eep.  21 
(1899);  Thornton  v.  Highland  A.  & 
B.  R.  Co.,  94  Ala.  353  (1891),  hotel. 

Florida.  Knickerbocker  Co.  v. 
Green  Bay  Phosphate  Co.,  62  Fla. 
519   (1911). 

Illinois.  Makeel  v.  Hotchkiss, 
190  111.  311,  83  Am.  St.  Rep.  131 
(1901),  hotel;  Heffron  v.  Rice,  149 
111.  216,  41  Am.  St.  Rep.  271  (1894), 
hotel. 

Maryland.  Diamond  Match  Co. 
V.  Taylor,  83  Md.  394   (1896). 

New  Jersey.  Walbert  v.  Harris, 
8  N.  J.  Eq.  605  (1850). 

Pennsylvania.  Gillespie  v.  Blair 
Gas  Co.,  189  Pa.  50  (1899);  Lewis 
v.  Lindon  Steel  Co.,  183  Pa.  248 
(1897). 

Tennessee.  Gwynn  v.  Memphis, 
etc.,  Co.,  93  Tenn.  603  (1894),  tem- 
porarily only. 

Virginia.  Peoples  National  Bank 
v.  Ya.  Textile  Co.,  104  Va.  34 
(1905). 

West  Virginia.  Freer  v.  Davis, 
52  W.  Va.  35,  94  Am.  St.  Rep.  910 
(1902). 

United  States.  Cake  v.  Mohun, 
164  U.  S.  311,  41  L.  ed.  447  (1896), 
hotel. 

This  is  frequently  done  in  the 
case   of  railway's.     Barton   v.  Bar- 


bour, 104  U.  S.  126,  26  L.  ed.  672 
(1881).  But  the  same  principle  ap- 
plies in  other  cases.  Knickerbocker 
v.  McKindley  Coal  Co.,  172  111.  535, 
64  Am.  St.  Rep.  54  (1898).  The 
courts  are  very  reluctant  to  be  in- 
volved in  the  continuous  manage- 
ment of  commercial  enterprises. 
See  High  on  Receivers,  Sec.  480; 
Hannah  v.  The  State  Trust  Co.,  70 
Fed.  2,  30  L.  R.  A.  20  (1895).  A 
business  should  not  be  continued 
by  receiver  at  a  loss.  Fleming  v. 
Fleming  Hotel  Co.,  70  N.  J.  Eq.  509 
(1905).  The  mere  order  for  a  re- 
ceiver to  take  possession  and  pre- 
serve the  property  does  not  give 
authority  to  continue  the  business. 
Demain  v.  Cassidy,  55  Miss.  320 
(1877);    Cake  v.   Mohun,  supra. 

It  has  been  held  that  the  re- 
ceiver has  no  authority  to  run  a 
coal  mine.  Farmers'  Loan,  etc., 
Co.  V.  Grape,  etc.,  Coal  Co.,  50  Fed. 
482,  16  L.  R.  A.  604  (1892).  Nor 
to  conduct  iron  works.  Fidelity, 
etc..  Deposit  Co.  v.  Roanoke  Iron 
Co.,  68  Fed.  624  (1895). 

32.  Shreve  v.  Hawkinson,  34  N. 
J.  Eq.  413  (1881);  Dan.  Ch.  Pr. 
(6th  Am.  ed.),  p.  1749. 

33.  Sec.  493,  post,  p.   818. 

34.  As  in  the  purchase  of  sup- 
plies, employment  of  labor  and 
other  expenditures  necessary  for 
the  preservation  of  property  or  con- 
duct of  the  business,  occurring  prin- 
cipally in  railroad  receiverships. 
John  H.  McGowan  Co.  v.  Ingalls, 
60  Fla.  116  (1910);  Vanderbiit  v. 
Central  R.  Co.,  43  N.  J.  Eq.  669 
(1887);  Lewis  v.  Linden  Steel  Co., 
183  Pa.  St.  248  (1892);  Northern 
Pacific  R.  Co.  v.  American  Trading 
Co.,  195  U.  S.  439,  49  L.  ed.  269 
(1904).     Small   sums   may  be  thus 


800 


EQUITY  PRACTICE 


pairs;  ^^  borrow  money;  ^^^  or  to  loan  it  when  specially 
authorized;^'  to  issue  certificates  by  special  order  of 
court ;  ^*  and  to  employ  counsel.^^ 


expended  by  the  receiver  in  his 
own  discretion  without  leave.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1749.  But 
the  general  rule  is  that  a  receiver 
should  pay  out  nothing  without  an 
order  of  court.  Hooper  v.  Winston, 
24  111.  354  (I860;;  Cowdrey  v.  R. 
Co.,  93  U.  S.  352,  23  L.  ed.  950 
(1876). 

35.  Wallace  v.  Loomis,  97  U.  S. 
146,  162,  24  L.  ed.  895  (1877). 
Small  sums  for  usual  expenses  may 
be  expended  without  leave.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1750; 
Thornhill  v.  Thornhill,  14  Sim. 
(Eng.  Ch.)  600.  But  no  large 
amount  can  be  expended  without 
an  oi<ler  of  court.  Att  'y  Gen.  v. 
Vigor,  11  Ves.  (Eng.  Ch.)  563.  The 
courts  are  liberal  in  the  matter, 
however,  where  the  expenditures 
constitute  a  permanent  betterment. 
Blunt  V.  Clitherow,  6  Ves.  799;  Cen- 
tral Trust  Co.  V.  R.  Co.,  52  Fed.  908 
(1892).  Or  is  necessary  to  prevent 
loss.  Heflfron  v.  Michigan,  40  111. 
App.  291  (1890).  Especially  in 
railroad  receiverships.  Hoover  v. 
R.  Co.,  29  N.  J.  Eq.  4  (1878). 

36.  When  necessary  for  the 
proper  management  of  the  prop- 
erty. Neyer  v.  Johnston,  53  Ala. 
237  (1875);  Burroughs  v.  Gaither, 
66  Md.  171  (1886);  Hoover  v.  R. 
Co.,  29  N.  J.  Eq.  4  (1878);  Ver- 
mont R.  Co.  v.  R.  Co.,  46  Vt.  792 
(1874);  Vermont  Pub.  Stat.  1906, 
Sec.  1292,  by  authority  of  court; 
Wallace  v.  Loomis,  97  U.  S.  146, 
162,  24  L.  ed.  895  (1877). 

37.  Darling  v.  Gilligan,  37  W.  Va. 
59  (1892).  He  has  no  power  to  in- 
vest money  in  trade  and  if  he  does 


so  and  obtains  more  than  a  simple 
interest,  he  will  be  charged  with 
the  whole  profit.  Schieflflin  v. 
Stewart,  1  Johns.  (X.  Y.)  Ch.  620 
(1815). 

A  receiver  may  invest  the  funds 
under  authority  of  the  court,  but 
the  court's  directions  must  be 
strictly  followed,  otherwise  the  re- 
ceiver will  be  liable  for  any  loss 
resulting.  Dewar  v.  Ellwood,  98 
111.  App.  46  (1900);  Hamel  v. 
Hamel,  27  Md.  679  (1867) ;  Carr  v. 
Morris,  85  Va.  21  (1888) ;  Roller  v. 
Paul,  106  Va.  214  (1906);  Balti- 
more, etc.,  R.  Co.  v.  Vanderworker, 
33  W.  Va.  191  (1889). 

38.  By  special  order  of  court 
only.    See  Sec.  494,  post,  p.  821. 

39.  Henry  v.  Henry,  103  Ala.  582 
(1893);  Okon  v.  State  Bank,  72 
Minn.  320  (1898);  Petersburg  Sav- 
ings, etc.,  Co.  V.  Delatore,  70  Fed. 
643  (1895).  In  the  Minnesota  case, 
it  was  held  that  a  receiver  is  un- 
der obligation  to  perform  such  du- 
ties as  any  ordinary  competent 
business  man  is  presumed  to  be 
capable  of  performing,  but  for  any 
services  requiring  special  legal 
skill,  he  may  employ  an  attorney 
at  the  expense  of  the  estate. 
Courts  in  passing  upon  charges  for 
counsel  fees  may  take  into  consid- 
eration their  personal  knowledge  as 
to  amount  of  work  done.  The  du- 
ties of  a  receiver  are  stricth'  ad- 
ministrative or  executive;  and  he 
is  not  required,  because  he  happens 
to  be  an  attorney,  to  perform  legal 
services  in  behalf  of  the  estate. 

A  receiver  may  employ  counsel 
without  the  previous  authority  of 


EECEIVERS 


801 


§  488.  Liability  of  receivers.    In  general  it  may  be  said 

that  it  is  tlie  duty  of  the  receiver  as  an  officer  of  the  court, 
guided  by  the  instructions  of  the  court,  to  reduce  to  pos- 
session, protect  and  preserve  the  property  committed  to 
his  charge  for  the  benefit  of  the  person  who  may  ulti- 
mately prove  himself  entitled  thereto.^^  A  receivership 
is  not  personal,  but  continuous,  and  the  liabilities  of  one 
receiver  devolve  upon  his  successors.^  ^  A  receiver  is 
liable,  generally  speaking,  for  any  breach  of  trust  or  any 
violation  of  the  rights  of  others  committed  by  him. 
Breaches  of  his  trust  duty  are  punishable  as  contempt  of 
court,^2  or  suit  may  be  brought  on  his  bond.^^  Violations 
of  the  rights  of  others  are,  with  leave  of  court,  remedied 


the    court.      Henry    v.    Henry,    103 
Ala.    582    (1893);    Stuart   v.    Boul- 
»ware,  133  U.  S.   78,  33  L.  ed.  568 
(1889). 

In  order  to  be  allowed  counsel 
fees  under  such  circumstances,  the 
receiver  must  show  to  the  court: 

(1)  That  the  fees  were  for  nec- 
essary legal  services  and  not  for 
services  within  the  ordinary  duties 
of  the  receiver. 

(2)  That  the  amount  claimed  is 
the  fair  and  reasonable  value  of 
the  legal  services  so  rendered. 

(3)  That  the  amount  asked  for 
has  been  actually  paid  in  good 
faith  by  the  receiver. 

Henry  v.  Henry,  103  Ala.  582 
(1893). 

It  is  the  rule  that  a  receiver  will 
not  be  allowed  to  employ  as  coun- 
sel one  whose  interests,  in  person 
or  as  attorney  for  another,  are  hos- 
tile to  the  interests  represented  by 
and  the  duties  of  such  receiver. 
Farwell  v.  Tel.  Co.,  161  111.  522 
(1897).  So  the  solicitor  of  either 
party  to  the  proceeding  should  not 
be  employed.  Warren  v.  Sprague, 
11  Paige"  (N.  Y.)  200   (1844). 

Whitehouse  E.  P.  Vol.  1—51 


But  the  creditors'  attorney  may 
be  employed  by  the  receiver  to 
wind  up  the  affairs  of  the  corpora- 
tion. Daniel  v.  Citizens'  Mutual 
Fire  Ins.  Co.,  149  Mich.  626  (1907). 

*40.  Delaware.  Stockbridge  v. 
Beckwith,  6  Del.  Ch.  62  (1887). 

Illinois.  Heffron  v.  Gage,  149 
111.  182  (1894). 

Maryland.  Day  v.  Postal  Tel. 
Co.,  66  Md.  354   (1886). 

Michigan.  First  National  Bank 
V.  E.  T.  Barnum  Wire  &  Iron 
Works,  58   Mich.  315   (1885). 

Pennsylvania.  Eobertson  v.  Atl. 
&  Gt.  Western  E.  Co.,  66  Pa.  160 
(1870). 

41.  Knickerbocker  v.  Benes,  195 
111.  434  (1902);  McNulta  v.  Lock- 
witch,  141  U.  S.  327,  35  L.  ed.  796 
(1891);  State  v.  Ey.  Co.,  84  Fed. 
67    (1898). 

42.  Cartwright's  Case,  114  Mass. 
230  (1873);  People  v.  Brooks,  40 
Mich.  333,  29  Am.  Eep.  534  (1879) ; 
Kirker  v.  Owings,  98  Fed.  499 
(1899). 

43.  Sec.  483,  <iiiie,  p.  790. 


802 


EQUITY  PRACTICE 


by  suit  as  against  any  other  wrong  doer.^^  A  receiver 
will  be  liable  for  disobeying  the  express  orders  of  the 
court;  *^  for  misappropriation  of  funds;  ^^  for  loss  occa- 
sioned through  unsafe  or  unauthorized  disposition  of 
funds;  ^"  for  any  profits  made  from  trust  funds ;^^  for 
loss  of  any  kind  occasioned  by  his  negligence;  *^  for  torts 
committed  by  him;'**  upon  his  contracts,  express  or  im- 


44.  Either  personallv.  Hills  v. 
Parker,  111  Mass.  508,  510  (1873). 
Except  where  a  tort  is  committed 
in  good  faith  under  the  authority 
of  the  court,  Morrill  v.  Xoyes,  56 
Me.  463  (1863).  Or  officially. 
WaU  V.  Piatt,  169  Mass.  39S,  400 
(1897). 

45.  Da  vies  v. -Craeropt,  14  Yes. 
Jr.  143;  Carr  v.  Morris,  So  Va. 
21  (188S):  Smith  on  Receiverships, 
Sees.  109,  110. 

46.  Cartwright's  Case,  114  Mas?. 
23  (1873);  Demain  v.  Cassidy,  55 
Miss.  320  (1877);  Pangburn  v. 
American  Vault,  etc.,  Co.,  205 
Pa.  St.  93  (1903).  In  Cartwright's 
Case,  it  was  held  that  tne  embezzle- 
ment might  be  punished  by  commit- 
ment for  contempt  although  the 
officer  was  also  indictable,  and  that 
this  was  not  simply  to  compel  res- 
titution but  to  punish  him  for  his 
offence  though  restitution  could  not 
be  made. 

47.  Wren  v.  Kirton.  11  Ves.  377. 
Thus  he  must  not  mingle  the  re- 
ceivership funds  with  his  own,  but 
should  deposit  them  under  direction 
of  the  court  in  a  bank,  separately, 
in  his  name  as  receiver.  Utica  Ins. 
Co.  V.  Lynch,  11  Paige  (X.  Y.)  520 
(1844);  Swartz  v.  Keystone  Oil 
Co.,  153  Pa.  283  (1893). 

48.  Schiefflin  v.  Stewart,  1  .Johns. 
Ch,  (N.  Y.)  626  (1815; ;  Utica  Ins. 


Co.  V.  Lynch,  11  Paige  (X.  Y.)  520 
(1844).  ' 

49.  Nichols  v.  Smith,  115  Mass. 
332  (1S74);  In  re  Angell,  131  Mich. 
345  (1902);  Downs  v.  Allen,  10  Lea 
(Tenn.)  652  (1882);  Gutterson  & 
Gould  V.  Lebanon  Iron  &  Steel  Co., 
151  Fed.  72  (1907). 

50.  Williams  v.  Clark,  140  Mass. 
238  (1SS5;;  Wall  v.  Piatt,  169 
Mass.  398,  401  (1847).  He  is  per- 
sonally liable  for  torts  committed 
without  authority  of  court.  Hills 
V.  Parker,  111  Mass.  508  (1873). 
Otherwise  not.  Morrill  v.  Noyes, 
56  Me.  463  (1S63). 

In  the  Federal  courts  it  is  held 
that  a  receiver  is  not  personally 
liable  for  injuries  arising  through 
negligent  operation  of  the  property, 
not  due  to  his  personal  negligence. 
An  action  against  him  for  such  in- 
juries is  in  law  one  against  the  re- 
ceivership in  which  the  judgment 
recovered  can  be  enforced  only 
against  the  property  or  funds  in  his 
hands,  and  which  cannot  be  main- 
tained after  the  receivership  has 
been  closed  and  the  receiver  dis- 
charged. Gray  v.  Grand  Trunk 
Western  B.  Co.,  156  Fed.  736  (1907). 

A  judgment  for  torts  of  a  re- 
ceiver 's  servants  is  in  the  nature 
of  a  judgment  tn  rem.  Kloepher 
v.  Osborne.  177  HI.  App.  384  (1913). 


KECEIVERS 


803 


plied;  ^^  as  a  common  carrier,  when  acting  as  such;  ^^  and 
for  costs  of  defending  or  prosecuting  suit.-^-^ 

On  the  other  hand,  a  receiver  will  not  be  liable  for 
acts  done  by  order  of  court;  ^^  for  losses  occurring  with- 
out his  fault,^'^  for  expenditures  made  in  good  faith  and 
for  the  best  interests  of  the  estate ;  ^^  for  torts  committed 
by  the  person  or  corporation  over  whose  property  he  is 
appointed,  before  his  appointment;  ^^  nor  upon  the  cove- 
nants or  contracts  of  such  person  or  corporation,  unless 
adopted  by  him;  ^^  nor  for  contracts,  made  by  a  preced- 
ing receiver;  ^^  nor  when  he  has  distributed  the  funds 
in  his  hands  by  order  of  court  and  been  discharged.*^" 


51.  Nichols  V.  Smith,  115  Mass. 
332  (1874);  Kneeland  v.  Foundry, 
140  U.  S.  592,  35  L.  ed.  543  (1890); 
Dow  V.  E.  Co.,  20  Fed.  260  (1884). 

52.  Paige  v.  Smith,  99  Mass.  395 
(1868);  Nichols  v.  Smith,  115  Mass. 
332  (1874);  Williams  v.  Clark,  140 
Mass.  238  (1885);  Wall  v.  Piatt, 
169  Mass.  398  (1897).  Even  where 
the  liability  is  created  purely  by 
statute  prescribing  liabilities  of 
railroad  corporations.  Wall  v. 
Piatt,  169  Mass.  398  (1897). 

53.  When  suit  is  brought  or  de- 
fended by  order  of  court,  the  costs 
are  payable  out  of  the  fund  if  it 
go  against  the  receiver.  Eadford 
V.  Folsom,  55  Iowa  276  (1880); 
Hynes  v.  McDermott,  14  Daly  (N. 
Y.)  104  (1886).  Otherwise  if  done 
without  leave  of  court  he  will  be 
personally  liable.  Fletcher  v. 
Dodd,  1  Ves.  85;  Green  v.  Bost- 
wick,  1  Sandf.  (N.  Y.  Ch.)  185 
(1843);  Tillinghast  v.  Champlin,  4 
R.  I.  173  (1856);  Cowdrey  v.  R. 
Co.,  1  Woods  (U.  S.)  331  (1870). 

54.  Heffron  v.  Rice,  149  111.  216, 
41  Am.  St.  Rep.  271  (1894);  Morrill 
v.  Noyes,  56  Me.  463  (1863);  Pow- 
ers V.  Londridge,  38  N.  J.  Eq.  396 


(1884) ;  Barton  v.  Ridgeway,  92  Va. 
162   (1895). 

55.  Knight  v.  Plymouth,  3  Atk. 
(Eng.  Ch.)  480;  Be  Union  Bank, 
37  N.  J.  Eq.  420  (1883). 

56.  Henry  v.  Henry,  103  Ala. 
582  (1893);  Atwood  v.  Knowlson, 
91  111.  App.  265  (1900);  Matthews 
V.  Adams,  84  Md.  143  (1896); 
Stuart  V.  Boulware,  133  U.  S.  78, 
33  L.  ed.  568  (1889). 

57.  No.  Pac.  R.  Co.  v.  Heflin,  83 
Fed.  93   (1897). 

58.  Com.  v.  Ins.  Co.,  115  Mass. 
278  (1874);  Bell  v.  Am.  Prot, 
League,  163  Mass.  558  (1895);  Em- 
pire Co.  V.  McNulta,  77  Fed.  700 
(1896). 

59.  Lehigh  Coal  and  Navigation 
Co.  V.  Central  Railroad  Co.,  41  N. 
J.  Eq.  167  (1886). 

60.  Farmers'  Trust  Co.  v.  R.  R., 
7  Fed.  537  (1881);  Davis  v.  Dun- 
can, 19  Fed.  477  (1884),  distin- 
guishing Miller  v.  Loeb,  64  Barb. 
454  (1873).  So  on  the  other  hand 
an  action  of  tort  for  personal  inju- 
ries sustained  by  an  employee  while 
a  railroad  was  in  the  hands  of  re- 
ceivers, cannot  be  maintained 
against  the  new  corporation  after 
the  receivers  have  turned  over  the 


804 


EQUITY  PRACTICE 


-  §  489.  Suits  by  receivers.  The  general  rule  is  that  in 
the  absence  of  statute  a  receiver  cannot  bring  suit  con- 
cerning the  receivership  property  without  first  obtaining 
leave  of  court.*^^  But  where  a  right  of  action  accrues  as 
an  incident  of  his  possession,''-  as,  for  instance,  in  cases 
of  trover  for  a  wrongful  taking  of  property  from  his 
custody;  ^^  or  where  there  has  been  an  actual  assign- 
ment of  the  property  to  him.  either  voluntarily  or  by 
order  of  court,'''^  leave  to  sue  need  not  be  obtained.  But 
where  leave  of  court  is  necessary,  the  receiver  must  allege 
distinctly  in  his  declaration  that  it  has  been  obtained.^^ 


property  to  it.  Archambeau  v.  R. 
B.,  170  Mass.  272  (1S97.). 

61.  Illinois.  Peabody  v.  New 
England  Water  Works  Co.,  88  111. 
App.  45 S  (1S9S). 

Mississippi.  Kretschmar  v.  Stone, 
90  Miss.  37.5   (1908;. 

New  York.  Green  v.  Winter,  1 
Johns.  Ch.  60  (1814). 

Pennsylvania.  Singleby  v.  Fox, 
75  Pa.  St.  ]12  (1S74). 

Tennessee.  Simmons  v.  Taylor, 
106  Tenn.  729  (1901). 

Virginia.  McAllister  v.  Harman, 
97  Va.  543  (1899) ;  Davis  v.  Snead, 
33  Gratt.  705  (1880). 

United  States.  Pendelton  v.  Bus- 
sell,  144  U.  .S.  640,  36  L.  ed.  574 
(1891);  Booth  v.  Clark,  17  How. 
331,  15  L.  ed.  164  (1855). 

General  leave  to  sue  and  defend 
is  frequently  given  in  the  order  of 
appointment,  but  the  safer  and  most 
approved  practice  is  to  obtain  spe- 
cial leave  in  each  instance.  Lit- 
tlefield  v.  B.  Co.,  104  Me.  126 
(1908);  Fogg  v.  Order  of  Golden 
Lion,  159  Mass.  9,  15  (1893).  Gen- 
eral authority  to  sue  is  sometimes 
conferred  by  statute.  Hayes  v. 
Brotzman,  46  Md.  519  (1887);  Mc- 
Bryan  v.  Universal  Elevator  Co., 
130  Mich.  11,  97  Am.  St.  Bep.  4.53 


(1902) ;  see  statutes  of  the  various 
states.  The  rule  requiring  leave  to 
sue  applies  to  petitions  in  the  court 
in  which  the  receiver  was  ap- 
pointed. Simmons  v.  Taylor,  106 
Tenn.  729  (1900).  And  also  to  suits 
in  other  jurisdictions.  Pendleton 
v.  Bussell,  144  U.  S.  640,  36  L.  ed. 
574  (1891). 

Authority  to  sue  is  not  generally 
given  receivers  pendente  lite  with- 
out investigation  of  the  propriety 
of  the  suit.  St.  Louis,  etc.,  B.  Co. 
V.  Vandalia,  103  HI.  App.  353 
(1902). 

62.  Pitt  V.  Snowden,  3  Atk.  (Eng. 
Ch.)  750;  Everett  v.  State,  28  Md 
190  (1867);  Singleby  v.  Fox,  75  Pa. 
112  (1874);  Boyle  v.  Townes,  9 
Leigh  (Ya.)  158  (1838). 

63.  Pond  V.  Cooke,  45  Conn.  126; 
Singleby  v.  Fox,  75  Pa.  112  (1874). 

64.  Hanke  v.  Blattner,  34  HL 
App.  394  (1889);  Green  v.  Bost- 
wick,  1  Sandf.  (N.  Y.  Ch.)  185 
(1846);  TUlinghast  v.  Champlin,  4 
B.  L  173  (1856). 

65.  Ward  v.  Swift,  6  Hare  (Eng. 
Ch.)  309;  Peabody  v.  Xew  England 
Water  Works  Co.,  80  HI.  App.  458 
(1898);  In  re  Merritt.  5  Paige  (X. 
Y.)  125;  Simmons  v.  Taylor,  106 
Tenn.  729  (1901).    A  receiver  in  or- 


RECEIVERS 


805 


There  is  considerable  conflict  of  opinion  as  to  the  right 
of  a  receiver  to  sue  in  his  own  name,  but  the  weight  of 
authority  seems  to  be  to  the  effect  that  in  the  absence 
of  express  or  implied  statutory  power  ^^  he  cannot  sue 
in  his  own  name,  but  must  proceed  in  the  name  of  the 
person  in  whom  the  right  of  action  originally  existed.^^ 


der  to  maintain  an  action  must  also 
set  out  so  much  of  the  proceedings 
as  to  show  that  he  was  legally  ap- 
pointed by  a  court  of  competent 
jurisdiction.  Ehover  v.  Middleboro 
Co.,  44  S.  W.  Kep.  448  (Ky.  1898); 
Rossman  v.  Mitchell,  73  Minn.  198 
(1898);  Coope  v.  Bowles,  42  Barb. 
(N.  Y.)  87  (1864). 

66.  Such  authority  may  be  given 
by  statute.  Rowell  v.  Chandler,  83 
111.  288  (1876);  Hobart  v.  Bennett, 
77  Me.  401  (1885);  Frank  v.  Mor- 
rison, 58  Md.  423  (1882);  Jacobs  v. 
Bement,  161  Mich.  415  (1910); 
Minchin  v.  Patterson  Second  Na- 
tional Bank,  36  N.  J.  Eq.  436 
(1883);  Terry  v.  Bamberger,  Fed. 
Cas.  No.  13837  (1877). 

67.  Illinois.  St.  Louis  Coal  Co,  v. 
Coal  Co.,  Ill  111.  32  (1884). 

Massachusetts.  Hayward  v.  Lee- 
son,  176  Mass.  310,  49  L.  R.  A.  725 
(1900). 

Maryland.  State  v.  Wilmer,  65 
Md.  178  (1877). 

Michigan.  Graydon  v.  Church,  7 
Mich.  36  (1859). 

Mississippi.      Newell    v.    Fisher, 

24  Miss.  392   (1852). 
Pennsylvania.      Yeager    v.    Wal- 
lace, 44  Pa.  294   (1863). 

Vermont.  King  v.  Cochran,  76 
Vt.  141,  104  Am.  St.  Rep.  922 
(1904). 

United  States.     Dick  v.  Oil  Co., 

25  Fed.  105  (1885). 

Contra.  See  Wray  v.  Jamison,  10 
Humph.   (Tenn.)   186   (1849). 


In  Baker  v.  Cooper,  57  Me.  388 
(1869),  which  was  an  action 
brought  by  receivers  of  a  bank  in 
their  own  name  to  obtain  posses- 
sion of  real  estate  to  which  the 
bank  was  entitled,  the  court  said: 

"The  defendant  contends  that 
the  actioa  is  improperly  brought 
in  the  name  of  the  receivers,  that 
it  should  have  been  commenced  in 
the  name  of  the  bank.  We  hold 
otherwise.  The  object  of  the  suit 
is  to  obtain  possession  of  the  real 
estate  in  question  for  the  receivers, 
and  not  for  the  bank.  A  suit  in 
the  name  of  the  bank  would  not 
accomplish  that  purpose,  for  the 
execution,  or  writ  of  possession,  if 
one  was  obtained,  would  require 
the  officer  executing  it,  to  put  the 
bank,  and  not  the  receivers,  into 
possession.  As  it  is  the  receivers 
that  are  seeking  to  obtain  posses- 
sion, we  think  the  suit  is  properly 
brought  in  their  names.  It  is  the 
direct  road  to  the  end  in  view.  A 
suit  in  the  name  of  the  bank  would 
be  circuitous,  and  result  doubtful." 

This  decision  might  have  been 
placed  upon  the  ground  of  implied 
statutory  authority  since  Maine  R. 
S.  of  1857,  Chap.  47,  Sec.  62,  au- 
thorized bank  receivers  to  collect 
the  debts  of  the  bank,  but  this 
point  does  not  appear  to  have  been 
made. 

Where  a  receiver  of  a  corpora- 
tion was  appointed  to  whom  a  bond 
and  mortgage  was  made  and  then  a 


806 


EQUITY  PRACTICE 


The  objection  is,  however,  merely  formal,  and  the  de- 
fect may  be  amended  by  substituting  the  name  of  the 
party  having  the  legal  right  of  action.*'*  The  weight  of 
authority  is  also  to  the  effect  that  the  order  of  a  court 
appointing  a  receiver  may  legally  authorize  a  receiver 
to  sue  in  his  own  name,®^  and  that  he  may  be  impliedly 


successor  to  the  first  receiver  was 
appointed,  the  latter,  while  he  could 
not  sue  at  law  in  his  own  name, 
maintained  a  bill  in  equity  in  his 
own  name  to  foreclose  the  mort- 
gage, since  he  was  in  effect  an 
equitable  assignee.  Inglehart  v. 
Bierce,  36  111.  133   (1874). 

In  case  of  a  company  debt  the 
receiver  sues  in  the  name  of  the 
company  which  was  party  to  the 
contract  unless  the  chose  in  action 
has  been  assigned  to  him  and  he  is 
allowed  by  the  law  of  the  former 
to  bring  an  action  in  his  own  name 
as  assignee.  Eochester  Tumbler 
Works  V.  Mitchell  Woodbury  Co., 
102  X.  E.  438   (Mass.  1913). 

68.  Wilson  v.  Welch,  157  Mass. 
77  (1892).  The  defect  will  be 
waived  by  a  failure  to  take  advan- 
tage of  it  seasonably.  Ewing  v. 
King,  169  Mass.  97   (1897). 

69.  Alabama.  Leonard  v.  Storrs, 
31  Ala.  488  (1858). 

Illlnois.  Inglehart  v.  Bierce,  36 
111.  133   (1864). 

Maryland.  Castleman  v.  Temple- 
man,  87  Md.  367,  41  L.  K.  A.  367 
(1898);  Frank  v.  Morrison,  58  Md. 
423   (1882). 

New  Jersey.  Sobernheimer  v. 
Wheeler.  45  N.  J.  Eq.  614  (1889). 

Rhode  Island.  Evans  v.  Pease, 
21  R.  I.  187  (1899). 

Tennessee.  Wray  v.  Jamison,  10 
Hump.  (Tenn.)   186  (1849). 

In  Xoyes  v.  Rich,  52  Me.  115 
(1862),    the    court    said    that    the 


right  to  the  custody  of  the  prop- 
erty rests  in  the  receiver  immedi- 
ately upon  filing  his  bond.  ' '  And 
he  may  by  order  of  court  bring 
suit  for  it  in  his  own  name. ' '  Citing 
Green  v.  Bostwick,  1  Sandf.  Ch. 
185  (1845). 

But  the  law  seems  to  be  settled 
in  Massachusetts  to  the  effect  that 
a  receiver  cannot  merely  by  vir- 
tue of  the  order  of  court  allowing 
it  sue  in  his  own  name,  except 
when  expressly  or  impliedly  au- 
thorized by  statute  or  where  there 
has  been  an  actual  assignment  of 
the  title  to  the  property  to  the 
receiver.  Wilson  v.  Welch,  157 
Mass.  77  (1892);  Haywood  v.  Lee- 
son,  176  Mass.  310,  49  L.  R.  A.  725 
(1900). 

In  Wilson  v.  Welch,  157  Mass.  77 
(1892)  the  court  held  as  follows: 

"Although  the  practice  in  this 
Commonwealth  has  not  been  uni- 
form (see  Farmers  &  Mechanics ' 
Bank  v.  Jenks,  7  Met.  592  (1844); 
Boot  &  Shoe  Manuf.  Ins.  Co.  v. 
Melrose  Congregational  Society, 
117  Mass.  199  (1875);  Sohier  v. 
Lamb,  134  Mass.  275  (1883),  and 
Parker  v.  Nickerson,  137  Mass.  487 
(1884)  ),  we  consider  the  law  to  be 
that  a  receiver  of  a  corporation  ap- 
pointed by  a  court  of  equity  can- 
not bring  suits  in  his  own  name 
to  recover  property  of  the  corpora- 
tion which  has  never  been  in  his 
possession,  unless  he  is  authorized 
80  to  do  by  statute,  or  by  the  decree 


KECEIVERS 


807 


authorized  by  the  statute  under  which  he  is  appointed 
giving  him  power  to  collect  the  debts  and  the  like."^** 
Where  there  has  been  an  actual  assignment  of  the  title 
to  the  property  to  the  receiver  it  is  well  established  that 
the  receiver  may  sue  in  his  own  name  '^^  without  any  order 
of  court  or  statute,  and  also  in  cases  where  the  right  of 
action  arises  out  of  his  possession,  as  in  the  case  of  a 
contract  made  by  him  concerning  the  property.'^^ 

Any  matter  of  defence  which  might  have  been  avail- 
able against  the  party  over  whose  property  the  receiver 
is  appointed,  may  be  set  up  against  the  receiver,  since  he 


of  a  court  competent  to  give  him 
such  authority,  or  unless  the  title 
to  the  property  has  been  conveyed 
to  him.  Courts  of  equity  cannot 
transfer  the  title  to  property  by 
decree  unless  authorized  by  statute, 
although  they  can  compel  the  de- 
fendant to  transfer  the  title.  Wil- 
son V.  Martin- Wilson  Automatic 
Fire  Alarm  Co.,  151  Mass.  515 
(1890)."  As  to  implied  authority 
of  statute,  see  Wilson  v.  Martin- 
Wilson  Co.,  151  Mass.  515   (1890). 

In  Leonard  v.  Storrs,  31  Ala.  488 
(1888),  it  was  held  that  even  if 
title  to  choses  in  action  is  not 
vested  in  receiver,  it  is  in  the  court 
which  appointed  him  to  such  an 
extent  that  it  may  give  him  author- 
ity to  sue  in  his  own  name. 

A  temporary  receiver  must  sue  in 
the  name  of  the  party  having  the 
legal  title.  Harland  v.  Bankers  & 
Merchants  Tel.  Co.,  32  Fed.  305 
(1887), 

70.  Young  V.  Stevenson,  81  111. 
App.  40  (1898);  Merchants  Bank 
v.  Steel  Co.,  57  N.  J.  L.  336  (1898) ; 
Wilkinson  v.  Eutherford,  49  N.  J. 
L.  241  (1887);  Storm  v.  Waddell, 
2  Sandf.  Ch.   (N.  Y.)    494   (1845); 


De  Wolf  V.  A.  &  W.  Sprague  Mfg. 
Co.,  11  R.  I.  380  (1878);  Porter  v. 
Sabin,  149  U.  S.  473,  37  L.  ed.  815 
(1892).  In  Baker  v.  Cooper,  57 
Me.  388  (1869),  above  cited  at 
length,  where  the  receiver  was  al- 
lowed to  sue  in  his  own  name,  the 
receiver  was  appointed  under 
Maine  R.  S.  1857,  Ch.  47,  relating 
to  banks  and  Sec.  62  of  such  chap- 
ter authorized  receivers  to  collect 
the  debts  of  the  bank. 

71.  Buswell  V.  Iron  Hall,  161 
Mass.  224  (1894);  Homer  v.  Barr 
Pumping  Engine  Co.,  180  Mass.  163 
(1901). 

It  has  been  said  that  the  rule 
that  receivers  must  sue  in  the 
names  of  those  whose  property 
they  hold  is  confined  mostly  to  tem- 
porary receivers  who  take  no  title. 
Harland  v.  Bankers'  &  Merchants' 
Telegraph  Co.,  32  Fed.  305   (1857). 

72.  Rochester  Tumbler  Works  v. 
Mitchell  Woodbury  Co.,  102  N.  E. 
438  (Mass.  1913) ;  Singerly  v.  Fox, 
75  Pa.  112  (1874) ;  Boyle  v.  Townes, 
9  Leigh  (Va.)  158  (1638).  Or  as 
holder  of  negotiable  paper  endorsed 
in  blank.  Farmers'  Bank  v.  Jenks, 
7  Met.   (Mass.)   592   (1844). 


808 


EQUITY  PRACTICE 


becomes  the  virtual  representative  of  such  person.'^  The 
weight  of  authority  also  permits  the  receiver  to  sue  not 
only  as  the  representative  of  the  original  owner  of  the 
property,  but  also  as  the  representative  of  all  the  credi- 
tors interested  in  such  property.'* 

§  490.  Suits  against  receivers.  The  general  rule  is  that 
a  rec-eiver  will  not  be  permitted  to  be  sued  without  leave 
of  the  court  in  which  he  was  appointed.'''    Thus  a  fund  in 


73.  Cbandler  v.  Frost,  88  HL  559 
(1872);  Brooks  v.  Bigelow,  142 
Mass.  6  (1886);  Gold  v.  Pajnter, 
101  Ya.  714  (1903).  As  in  the 
c*ae  of  a  set-off.  Am.  Bank  t. 
Wall,  56  Me-  167  (1863);  Com.  v. 
Bank,  11  Met.  (Mass.)  129  (1846); 
Colt  V.  Brown,  12  Gray  (Mass.)  233 
(1858);  Com.  t.  Ins.  Co.,  112  Mass. 
131  (1873).  Bnt  the  appointment 
of  a  reeeiver  does  not  make  him 
so  far  the  representative  of  the 
eorporation  that  he  ean  bind  it  br 
admissions  im  pais  made  outside  the 
perfoimanee  of  his  official  duties. 
Fort  Payne  Goal  Co.  v.  Webster, 
163  Mass.  134  (1895). 

74.  Merchants  Bank  t.  Steel  Co., 
57  X.  J.  L.  336  (1894);  Stoart  v. 
Hayden,  72  Fed.  402  (1895).  But 
see  Hancock  Xat.  Bank  t.  Ellis, 
172  Mass.  39  (1898).  Where  the 
receiver  represents  the  creditors  of 
the  corporation  as  well  as  the  cor- 
poration itself,  some  defenses 
which  would  have  been  good 
against  the  corporation  would  not 
be  good  against  the  receiver  as  rep- 
resenting creditors.  Lyons  v.  Ben- 
ney,  230  Pa.  117  (1911). 

75.  Alabama.  Baker  v.  Carra- 
way,  133  Ala.  502  (1901). 

Honda.  Bay  v.  Trice,  53  Fla. 
864  (1907). 

Maine.  Chalmers  v.  Littlefield, 
103  Me.  271  (1907);  Morrill  v. 
Noyes,  56  Me.  458  (1863). 


Maxyland.  Forest  Lake  Ceme- 
tery V.  Baker,  113  Md.  529  (1910;. 

Massachusetts.  Porter  v.  King- 
man, 126  Mass.  141  (1879);  Hills  v. 
Parker,  111  Mass.  508  (1873). 

Michigan.  Prather  Engineering 
Co.  V.  Detroit  F.  k  S.  B,  Co.,  152 
Mieh.  582  {19oS  ) :  People  v.  Brooks, 
40  Mich.  333,  29  Am.  St.  Rep.  534 
(1879). 

New  Jersey.  Klein  v.  Jewett,  26 
X.  J.  Eq.  474  (1875). 

Virginia.  Beed  v.  Aitell,  84  Va. 
231  (1887). 

West  Virginia.  Jones  v.  Browse, 
32  W.  Ya.  444  (1889). 

United  States.  Barton  v.  Bar- 
bour. IC'4  r.  S.  126,  26  L.  ed.  672 
(18S1). 

In  Morrill  r.  Xoyes,  56  Me.  458 
(ls63),  the  court  said:  "After  the 
receiver  has  taken  possession,  any 
person  claiming  the  property,  or 
any  interst  therein  may  present 
his  claim  to  establish  his  claim. 
Or  he  may  petition  to  have  it 
heard  before  a  master.  Or  he  may 
by  express  permission  of  the  court, 
bring  a  suit  for  the  possession,  care 
being  taken  to  protect  the  receiver. 
But  the  receiver  will  not  be  or- 
dered to  deliver  the  property  to  a 
claimant,  until  his  right  is  estab- 
lished in  one  of  these  modes. ' ' 

In  Hills  V.  Parker,  111  Mass. 
508,  it  was  said:  "Wlien  property 
has  been  put  by  the  decree  of  a 


RECEIVERS 


809 


the  control  of  the  court  cannot  be  reached  by  bringing 
garnishment  process  against  the  receiver."*^  But  this 
rule  has  been  abrogated  in  some  jurisdictions  by  stat- 
ute; "'^^  and  it  does  not  extend  to  cases  where  the  receiver 
has  taken  possession  of  property  without  authority  of 
the  court  or  has  done  anv  other  ultra  vires  acts.^^  Under 


court  of  chancery  into  the  hands 
of  a  receiver,  his  possession  is  the 
possession  of  the  court  which  ap- 
pointed him,  and  any  rights  in  the 
property  can  only  be  asserted  by 
application  to  that  court.   .    .    . 

"The  property  in  the  hands  of 
the  receiver  as  an  officer  of  the 
court  is  in  the  custody  of  the  law, 
and  cannot  therefore  be  seized  or 
sold  on  execution,  or  distrained  for 
rent,  without  leave  of  the  court 
which  appointed  the  receiver.  Kus- 
sell  V.  East  Angian  Railway  Co.,  3 
Macn.  &  G.,  104;  Noe  v.  Gibson,  7 
Paige  (N.  Y.)  513;  Eobinson  v, 
Atlantic  &  Great  Western  Railway 
Co.,  66  Pa.  State,  160;  Wiswall  v. 
Sampson,  14  How.  52." 

This  rule  was  held  not  to  apply 
in  Hupfeld  v.  Automaton  Piano 
Co.,  66  Fed.  788  (1895),  which  was 
a  suit  to  restrain  infringement  of 
a  patent  right  by  a  receiver  ap- 
pointed in  a  state  court;  since  the 
Federal  court  was  the  only  one 
having  jurisdiction  of  that  kind  of 
a  case. 

76.  Columbian  Book  Co.  v.  De- 
Golyer,  115  Mass.  67  (1874);  Com. 
v.  Ins.  Co.,  119  Mass.  155  (1875). 

76a.  See  36  V.  S.  Stat.  L.  1104, 
which  provides  "that  every  re- 
ceiver or  manager  of  any  property 
appointed  by  any  court  of  the 
United  States  may  be  sued  in  re- 
spect of  any  act  or  transaction  of 
his  in  carrying  on  the  business 
connected  with  such  property 
without  the  previous  leave  of  the 


court  in  which  such  receiver  or 
manager  was  appointed;  but  such 
suits  will  be  subject  to  the  general 
equity  jurisdiction  of  the  court  in 
which  such  receiver  or  manager 
was  appointed  so  far  as  the  same 
may  be  necessary  to  the  ends  of 
justice."  The  last  clause  of  this 
statute  does  not  mean  that  the  ap- 
pointing court  may  modify,  change 
or  reject  a  judgment  against  its 
receiver  in  another  court.  Central 
Trust  Co.  v.  St.  Louis,  Ark.  & 
Texas  R.  Co.,  41  Fed.  551  (1890). 
But  it  applies  only  to  suits  which 
seek  to  interfere  with  the  re- 
ceiver's possession  of  property  and 
to  process,  the  execution  of  which 
would  have  that  effect,  the  time 
when  and  the  manner  in  which  a 
judgment  against  the  receiver  shall 
be  paid,  the  adjustment  of  equities 
between  all  persons  having  claims 
against  the  property  in  his  hands, 
and  the  just  distribution  of  the 
funds  according  to  the  rights  of 
the  several  parties  interested  in  it. 
Dillingham  v.  Hock,  60  Fed.  Rep. 
494   (1894). 

In  Illinois  a  similar  statute  now 
exists.     See  Laws  1913,  p.  254. 

Leave  of  court  to  bring  an  action 
against  a  receiver  to  compel  pay- 
ment of  a  decree  is  unnecessary 
where  nothing  remains  for  the  re- 
ceiver to  do  except  to  pay  the  de- 
cree. People  for  use  of  Wiplfer  v. 
Wiplfer,  167  Mich.  13,  16  (1911). 

77.  Hetzel    v.    Fadner,    162    111. 


810 


EQOTY  PRACTICE 


such  circninstances  leave  to  sue  need  not  be  obtained, 
since  the  receiver's  ix>ssession  or  act  is  no  longer  that 
of  the  court. 

As  to  the  effect  of  bringing  suit  against  a  receiver 
without  leave  of  court,  the  authorities  are  somewhat 
divided-  It  is  held  in  several  of  the  states  that  the  fail- 
ure to  obtain  leave  to  sue  is  a  jurisdictional  defect  which 
may  be  pleaded  in  bar  to  the  action-"^  In  other  states 
it  is  not  regarded  as  jurisdictional  defect,  but  the  court 
appointiDg  the  receiver  acts  on  the  person  of  the  parties 
bringing  the  suit,  punishing  them  for  contempt  or  re- 
straining the  further  prosecution  of  the  suit  by  injunc- 
tion."* 


App.  639  (1911);  MorrOI  t.  Xot€s, 
56  McL  458  (1S63);  P&ige  v.  Smitk, 
99  Mass.  395  (186S);  IGUs  t. 
Parker,  111  Mass.  510,  511  (1S73); 
Poster  X.  Kugaaa,  126  Maaa.  141 
(1879). 

la  Hnb  T.  Parker,  111  Mass.  SOS, 
510,  511  (1873),  it  ms  kdd  that 
"The  ovaer  of  a  locoBOtive  eagiae 
■laj  ■aintala  r^teria  for  it 
agaiast  tlie  ageat  of  a  lailroad  cor- 
poratioB,  whose  property  is  ia  the 
haads  of  receivers,  without  obtaia- 
iag  leaT-e  of  the  court  ^^oiatiag 
the  receiTos,  if  the  corpotatioa  has 
BO  iaterest  ia  the  eigiae,  although 
it  is  used  oa  the  lailroad.  The 
decree  of  a  court  of  ehaaceiy  ap- 
poiatiag  a  receiver  eatitles  him  to 
its  protectioa  oalj  ia  the  poeses- 
sicm  of  pn^ertj  which  he  is  ao- 
thosixed  or  directed  bj  the  decree 
to  take  poaaeaaioa  of.  Whea  he 
aasomes  to  take  or  h<rid  posseasioa 
of  fmpettj  BOt  embraced  ia  the 
decree  ^^iatiag  hin,  aad  to 
which  the  debtor  acTer  had  aaj 
title,  he  is  aot  actiag  as  the  officer 
or  representative  of  the  court  of 


chaaccsy,  but  is  a  u^eie  c^iespasser, 
aad  the  rightful  owner  of  the  prop- 
ertj  BMij  sue  hi^  in  any  apprnpri- 
ate  form  of  actioa  f  w  damages  or 
to  recover  possessioB  of  the  prop- 
erty iOegaDy  takea  or  detained. 
Puge  T.  SauOt,  99  llass.  395 
(1S@);  Leig^toa  v.  Harwood,  111 
Mass.  67  (1873);  Parka-  v.  Brawm- 
iag,  S  Paige  (X.  Y.)  388  (18I0).»* 

78.  Steele  v.  Walker,  115  AJa. 
485  (1896);  Beed  v.  Axtell,  84  Ta. 
231  (1887);  Bartoa  v.  Barbour,  104 
U.  &  126,  26  Lu  ed.  672  (1881). 
Fuhne  to  allege  leave  is  grooBd 
for  demurrer. 

Whea  suit  is  bi ought  *g«i»«t  a 
receiver,  the  coaseat  of  the  court 
must  be  avored  aad  fnoved  bj  the 
plaiatiff.  Steel  Kriek,  etc.  Go.  v. 
MuskegoB  Mach.  Co.,  98  Mich.  614 
(1894|;  Simmons  v.  Taylor,  106 
Tean.  TS9,  (1900).  Comtra,  Howard 
V.  StepheasoB,  33  W.  Va.  116 
(1^9),  hol^ag  that  it  is  aot  aec- 
essaiy  to  allege  it  or  to  prove  it 
ia  the  abs^Me  of  a  deaiaL 

79L  Mnkahey  v.  Straaaa,  151  HL 
70  (1894);  Paige  v.  Smith,  99 
Mass.  395  (186811:  Hills  v.  Parker, 


RECEIVERS 


811 


The  application  for  leave  to  sue  is  usually  made  by 
petition  to  the  court  which  appointed  the  receiver,  set- 
ting forth  the  plaintiff's  cause  of  action.^^  The  court  will 
then  determine  first  whether  the  petition  presents  an  ap- 
parent cause  of  action,^  ^  and  if  so,  leave  will  be  granted 
usually  as  a  matter  of  course  if  the  issue  is  purely  legal,®^ 
but  if  the  cause  is  an  equitable  one,  it  will  be  retained  and 
determined  in  the  pending  suit.^^  "Equitable  rights, 
which  it  is  contended  are  superior  to  the  title  made  by 
order  of  the  court,  can  be  passed  upon  only  in  the  cause 


111  Mass.  510  (1873);  Smith  v. 
Circuit  Judge,  84  Mich.  564  (1891) ; 
Burke  v.  Ellis,  105  Tenn.  702 
(1900);  Newell  v.  Smith,  49  Vt. 
255  (1876);  Roxbury  v.  Central  Vt. 
E.  Co.,  60  Vt.  121  (1886). 

This  is  the  rule  at  least  where 
the  action  does  not  interfere  with 
the  receiver's  possession.  Mul- 
cahey  v.  Strauss,  151  111.  70  (1894); 
American  Steel,  etc.,  Co.  v.  Bearse, 
194  Mass.  596  (1907).  The  re- 
ceiver may  appear,  plead  and  waive 
the  objection.     Ibid. 

In  Morrill  v.  N"oyes,  56  Me.  463 
(1868),  the  court  said:  "Nor  can 
claimant  bring  a  suit  against  the 
receiver  except  by  leave  of  court, 
without  being  liable  for  a  con- 
tempt, if  the  property  is  a  part  of 
the  subject  matter  in  controversy. ' ' 

80.  Atlas  Bank  v.  Nahant  Bank, 
23  Pick.  (Mass.)  480  (1859);  W^iite 
V.  White,  169  Mass.  52  (1897); 
Hatch  V.  Vandervoort,  54  N.  .J.  Eq. 
511  (1896);  Kennedy  v.  R.  Co.,  3 
Fed.  97   (1880). 

81.  Angel  v.  Smith,  9  Ves.  Jr. 
335;  Palys  v.  Jewett,  32  N.  J.  Eq. 
302  (1880);  Jordan  v.  Wells,  3 
W^oods  (U.  S.)  527  (1879). 

Leave  to  sue  once  granted  may 
be  revoked.     Ray  v.  Trice,  53  Fla. 


864    (1907);    Buckhannon,   etc.,   R. 
Co.  V.  Davis,  135  Fed.  737   (1905). 

82.  Angel  v.  Smith,  9  Ves.  Jr. 
335;  Paxson  v.  Cunningham,  63 
Fed.  132  (1894).  But  legal  issues 
may  also  be  retained  if  desired. 
Parker  v.  Browning,  8  Paige  (N. 
Y.)  .388  (1840);  Barton  v.  Barbour, 
104  U.  S.  126,  26  L.  ed.  672  (1881). 
This  is  especially  so  where  peti- 
tioner asked  the  court  appointing 
the  receiver  to  decide  the  case. 
Smith  V.  Perth  Amboy  Brick  Co., 
47  N.  .J.  Eq.  442   (1890). 

It  is  discretionary  as  to  whether 
the  court  will  allow  an  independent 
suit  or  petition  in  the  action  in 
which  the  receiver  is  appointed. 
Gunning  v.  Sorg,  214  111.  616  (1905) ; 
Reed  v.  Axtell,  84  Va.  231  (1877). 
But  where  the  power  or  authority 
of  the  court  to  make  the  order  un- 
der which  receiver  is  acting  is  dis- 
puted, the  court  which  appointed 
the  receiver  must  assume  exclusive 
jurisdiction.  Klein  v.  Jewett,  26 
N.  J.  Eq.  474   (1875). 

83.  Columbia  Book  Co.  v.  De- 
Golyer,  115  Mass.  67,  70  (1874); 
Porter  v.  Kingman,  126  Mass.  141 
(1879);  Mercantile  Trust  Co.  v.  R. 
Co.,  70  Fed.  518  (1895). 


812 


EQUITY  PRACTICE 


in  which  the  title  is  created,  and  cannot  be  set  up  in  an 
independent  suit."^"* 

In  suits  against  a  receiver  he  represents  the  person 
over  whose  property  he  has  been  appointed,  and  may 
plead  in  defence  any  matter  which  might  have  been  set 
up  by  such  person.^''  The  appointment  of  a  receiver  is 
not  a  bar  to  suits  brought  against  a  corporation  before 
the  bill  is  filed,  nor  do  such  suits  abate  in  consequence 
of  such  appointment,  but  the  receiver  may  appear  therein 
and  defend  them.^*^ 

§  491.  Foreign  jurisdiction  of  receivers — Comity.  It  is 
important  to  note  that  the  authority  of  a  receiver  is  co- 
extensive only  with  the  jurisdiction  of  the  court  appoint- 
ing him.  Tlie  appointment  has  not  in  itself  any  extra 
territorial  force.^    Thus  the  appointment  of  a  receiver  in 


84.  Porter  v.  Kingman.  126  Mass. 
1-11  (1S79).  citing:  Kussell  v.  East 
Englian  Railway,  3  Macn.  &  Gord. 
(Eng.  Ch.)  104;  Atlas  Bank  v. 
Xahant  Bank,  23  Pick.  (Mass.) 
480  (1S39);  Columbia  Book  Co.  v. 
DeGolyer,  115  Mass.  67  (1874); 
Xoe  V.  Gibson,  7  Paige  (N.  Y.)  513 
(1S39);  Bobinson  v.  Atlantic  & 
Great  Western  Eailway,  66  Pa.  St. 
160  (1870);  Wiswall  v.  Sampson, 
14  How.  (U.  S.)  52,  14  L.  ed.  322 
(1852). 

In  Porter  v.  Kingman,  it  was  held 
that  a  person  who  has  purchased  an 
estate  subject  to  a  mortgage  given 
by  a  former  owner  to  a  bank  can- 
not maintain  a  bill  in  equity 
against  the  receivers  of  the  bank 
to  procure  a  cancellation  of  the 
mortgage,  on  the  ground  that  it 
was  obtained  by  the  false  and 
fraudulent  representations  of  the 
bank,  but  if  he  has  any  remedy  in 
equity  must  proceed  by  a  petition, 
in  the  cause  in  which  the  receivers 
were  appointed. 


85.  Jordan  v.  Wells.  3  Woods 
(U.  S.)   527   (1S7S). 

86.  Kittredge  v.  Osgood,  161 
Mass.  3S4   (1S94). 

1.  Delaware.  Kirwan  Mfg.  Co. 
v.  Truxton,  2  Pennew.  48   (1899). 

Illinois.  Smith  v.  Betz,  125  111. 
App.  122  (1905). 

Maine.  Hunt  v.  Columbian  Ins. 
Co..  55  Me.  290    (1S67). 

Maryland.  So.  Loan  Ass.  v. 
Price.  SS  Md.  155,  164  (1898). 

Massachusetts.  Amy  v.  Manning. 
149  Mass.  4S7   (1SS9). 

New  Jersey.  Irwin  v.  Granite 
State  Prov.  Association,  56  N.  J. 
Eq.  244  (1897). 

Vermont.  Lycoming  Fire  Ins. 
Co.   V.   Wright.  55  Vt.  526   (1883). 

West  Virginia.  Grogan  v.  Eg- 
bert. 44  W.  Va.  75,  67  Am.  St.  Bep. 
763    (1S97). 

United  States.  Great  Western 
Mining,  etc.,  Co.  v.  Harris,  198  U. 
S.  561.  40  L.  ed.  1163  (1904) :  Booth 
V.  Clark.  17  How.  322,  15  L.  ed.  164 
(1854).     So  a  Federal  court  in  one 


EECEIVERS 


813 


one  state  cannot  defeat  an  attachment  in  another.^  But 
as  a  matter  of  comity  the  courts  of  the  second  state  will 
in  their  discretion  recognize  the  rights  of  such  foreign 
receiver  in  cases  where  it  would  not  be  prejudicial  to  the 
rights  and  claims  of  citizens  of  such  state.^  So  although 
a  receiver  has  no  absolute  right  to  bring  suit  in  another 
state  to  enforce  claims  in  behalf  of  his  receivership  es- 
tate,^ yet  upon  the  ground  of  comity,  a  receiver  will  usu- 


state  cannot  reach  property  in  an- 
other state  by  means  of  a  receiver 
appointed  in  the  first  state.  Kittel 
V.  E.  Co.,  78  Fed.  855  (1896).  Nor 
can  a  receiver  appointed  by  a  state 
court  institute  a  suit  in  a  Federal 
court  sitting  in  another  state.  Coal 
&  Iron  Ry.  Co.  v.  Reherd,  204  Fed. 
859   (1913). 

2".  Hunt  V.  Columbian  Ins.  Co., 
55  Me.  290  (1867);  Folger  v.  Co- 
lumbian Ins.  Co.,  99  Mass.  267 
(1868) ;  Taylor  v.  Columbian  Ins. 
Co.,  14  Allen  (Mass.)  353  (1867). 
So  a  receiver  appointed  over  a  for- 
eign partnership  on  its  dissolution 
will  not  be  permitted  to  remove 
property  of  the  partnership  from 
the  state  where  found,  to  the  det- 
riment of  resident  creditors.  Gro- 
gan  V,  Egbert,  44  W.  Va.  74  (1897). 
So  a  court  will  not  refuse  to  ap- 
point a  receiver  in  one  state  merely 
because  there  is  a  suit  pending  in 
another  state  for  the  appointment 
of  a  receiver  over  the  same  prop- 
erty; and  where  a  receiver  ap- 
pointed in  the  first  state  has  taken 
possession  of  the  property,  it  will 
not  be  surrendered  to  a  receiver 
subsequently  appointed  in  another 
state  although  the  suit  was  first 
begun  in  the  latter.  East  Tenn.  R. 
Co.  v.  R.  Co.,  49  Fed.  608  (1892). 
The  test  is  "Not  which  action  was 
first  commenced  nor  which  cause 
of   action    has    priority    or    superi- 


ority, but  which  court  first  acquired 
jurisdiction  over  the  property,"  by 
seizure.  Mr.  Justice  Bradley  in 
Wilmer  v.  R.  Co.,  2  Woods  (U.  S.) 
426   (1875). 

3.  Hunt  V.  Columbian  Ins.  Co.,  55 
Me.  290  (1867);  Castleman  v. 
Templeman,  87  Md.  546  (1898); 
Buswell  V.  Iron  Hall,  161  Mass.  224 
(1894);  Taylor  v.  Columbian  Ins. 
Co.,  14  Allen  (Mass.)  353  (1867). 
In  Hunt  V.  Columbian  Ins.  Co.,  p. 
297,  the  court  said: 

"The  receivers  who  assert  this 
claim  here,  are  merely  the  servants 
of  the  court  in  New  York  having 
legal  authority  coextensive  only 
with  the  jurisdiction  of  the  court 
by  whom  they  were  appointed. 
Upon  principles  of  comity,  often 
recognized  and  always  acted  on,  ex- 
cept where  they  come  in  conflict 
with  paramount  rights  of  suitors  in 
our  courts,  they  might  be  admitted 
here  to  protect  the  interests  and 
enforce  the  claims  of  the  corpora- 
tion, of  whose  affairs  they  are  the 
legal  guardians  there.  But  comity 
does  not  require  us  to  permit  the 
exercise  of  such  privileges  to  the 
detriment  of  our  own  citizens  who 
are  pursuing  appropriate  legal  rem- 
edies in  this  court." 

4.  Amy  v.  Manning.  149  Mass. 
487  (1889);  Hazlett  v.  Woodhead, 
28  R.  I.  452  (1907);  Dillingham  v. 
Traders'    Ins.    Co.,    120    Tenn.    302 


814 


EQUITY  PRACTICE 


ally  be  allowed  to  bring  suit  in  such  case  where  no 
interests  of  creditors  or  citizens  of  the  home  state  are 
injuriously  affected,  whether  he  seeks  to  sue  as  common 
law  receiver,  so  called,  or  simply  by  virtue  of  his  ap- 
pointment as  receiver,  without  any  actual  assignment 
of  the  property  or  without  being  treated  as  assignee.^ 


(1908);  Booth  v.  Qark,  17  How. 
322,  15  L.  ed.  164  (1854);  Fair- 
view  Flour,  etc.,  Co.  v.  L'lrich,  192 
Fed.  894  (1912). 

The  disabilitr  of  a  receiver  of 
one  state  to  sue  in  another  has  no 
application  to  Federal  circuits 
within  the  same  state.  Horn  v. 
Pere  Marquette  R.  Co.,  151  Fed. 
626,  631  (1906). 

5.  Alabama.  Boulware  v.  Davis, 
90  Ala.  214,  9  L.  R.  A.  641  (1889), 

Delaware.  Stockbridge  v.  Beck- 
with.   6   Del.   Ch.  72    (1887). 

Maine.  Hunt  v.  Columbian  Ins. 
Co.,  55  Me.  290.  298  (1867). 

Maryland.  Castleman  v.  Temple 
man.  ■-:  ML  546  (1398). 

Michigan.  Graydon  v.  Church, 
7  Mieh.  36  (1859). 

New  Jersey.  Hurd  v.  Elizabeth, 
41  X.  J.  L.  1  (1879). 

Pennsylvania,  Frowert  v.  Blank, 
205  Pa.  299  (1903). 

Vermont.  Lycoming  Ins.  Co.  v. 
Wright.  35  Vt.  526   (1883). 

West  Virginia.  Grogan  v.  Eg- 
bert, 44  W.  Va.  75.  67  Am.  St.  Bep. 
763   '1S97I. 

United  States.  Lewis  v.  Clark. 
129  Fed.  570   (1904). 

In  such  case  it  is  held  that  the 
receiver  should  petition  the  foreign 
court  for  permission  to  sue.  Castle- 
man V.  Templeman,  87  Md.  .546. 
Or  proceed  by  virtue  of  an  actual 
assignment  of  the  property  to  him 
by  the  defendant,  compelled  by  or- 
der of  court.  Iglehart  v.  Bierce, 
36  HI.   133    (1864):   Taylor  v.  Co- 


lumbian Ins.  Co.,  14  Allen  (Mass.) 
353  (1867);  Buswell  v.  Iron  Hall, 
161  Mass.  224  (1894);  Graydon  v. 
Church,  7  Mich.  36  (1859);  King  v. 
Cochran,  76  Vt.  141,  104  Am.  St. 
Bep.  922  (1901).  But  it  is  held  that 
the  appointment  of  a  receiver  with 
full  power  to  collect  the  property 
whenever  found,  should  be  deemed 
to  operate  as  an  assignment  of  the 
property  to  be  enforced  everywhere 
subject  to  the  rules  of  domestic 
citizens  as  above  stated.  Falk  v. 
Janes,  49  X.  J.  Eq.  484  (1S91).  So 
a  foreign  voluntary  receiver  or 
assignee  for  the  benefit  of  cred- 
itors may  have  in  a  proper  case 
the  aid  of  the  court  to  sectire  pos- 
session and  control  of  property  con- 
veyed to  him  and  as  against  for- 
eign creditors  he  will  be  protected 
in  his  rights  to  all  the  property  in 
the  domestic  state  of  which  he  does 
obtain  possession.  Smith  v.  Berz, 
125  m.  App.  122   (1905). 

While  the  title  of  a  foreign  re- 
ceiver cannot  be  asserted  to  the 
prejudice  of  claims  and  attach- 
ments of  domestic  creditors  or  of 
foreign  creditors  suing  in  the  do- 
mestic state, — Linville  v.  Hadden, 
88  Md.  594.  43  L.  R.  A.  222  (1898) 
— the  creditors  of  the  state  in 
which  the  receiver  was  appointed 
and  who  are  bound  thereby,  will 
not  be  allowed  to  set  up  a  claim 
against  the  receiver  in  another 
state  and  attempt  to  defeat  his  title 
in  violation  of  the  law  of  their 
own  state.     Sercomb  v.  Catlin,  128 


RECEIVERS 


815 


In  the  Federal  courts  and  in  some  of  the  states,  how- 
ever, the  receiver  cannot  sue  outside  the  jurisdiction  of 
his  appointment  unless  he  has  been  vested  with  the  title 
to  the  property  by  transfer  or  by  statute  in  the  state  of 
his  appointment.^^ 


III.  556,  15  Am.  St.  Rep.  147  (1889); 
Linville  v.  Hadden,  supra;  Bagby 
V.  Atlantic,  etc.,  R.  Co.,  86  Pa.  291 
(1878). 

5a.  Homer  v.  Barr  Pumping  En- 
gine Co.,  180  Mass.  163  (1901); 
Tully  V.  Herrin,  44  Miss.  626 
(1870);  Commercial  National  Bank 
V.  Motherwell  Iron  &  Steel  Co.,  95 
Tenn.  172,  29  L.  R.  A.  164  (1895); 
Great  Western  Mining,  etc.,  Co.  v. 
Harris,  198  U.  S.  561,  49  L.  ed.  1163 
(1905);  Booth  v.  Clark,  17  How. 
322,  15  L.  ed.  164  (1854) ;  Fairview 
Fluor  Spar  &  Lead  Co.  v.  Ulrich, 
192  Fed.  894  (1911);  Fowler  v.  Os- 
good, 141  Fed.  20,  4  L.  R.  A.  (N.  S.) 
824  (1905).  In  Homer  v.  Barr 
Pumping  Engine  Co.,  supra,  the 
court  allowed  an  amendment  substi- 
tuting the  name  of  the  corporation 
for  that  of  the  receiver.  See  Camp- 
bell &  Zell  Co.  V.  Barr  Pumping  En- 
gine Co.,  182  Mass.  304  (1902). 

In  Wolfeboro  Loan  &  Banking 
Co.  V.  Rollins,  195  Mass.  323 
(1907),  the  question  arose  as  to 
whether  a  New  Hampshire  cor- 
poration could  sue  on  a  note  in 
Massachusetts,  there  being  an  as- 
signee of  plaintiff's  property  ap- 
pointed by  the  New  Hampshire 
court,  who  thereby  became  the 
holder  of  the  legal  title  to  all  the 
property.  The  court  held  that 
even  if  the  assignee  with  his  stat- 
utory title  in  a  foreign  state  could 
not  have  maintained  an  action  in 
Massachusetts  in  his  own  name 
(which  was  not  decided  by  the 
court),   there   was    no    reason   why 


he  could  not  cause  an  action  to  be 
brought  in  the  name  of  the  corpo- 
ration, and  the  court  cited  in  sup- 
port of  this  proposition.  Homer  v. 
Barr  Pumping  Co.,  180  Mass.  163 
(1901).  If  a  voluntary  assignment 
is  made  by  the  debtor  to  a  receiver, 
the  receiver's  rights  will  be  recog- 
nized in  a  foreign  state.  Graydon 
V.  Church,  7  Mich.  36  (1859).  A 
fortiori  when  the  right  was  never 
in  the  debtor,  but  accrued  to  the 
receiver,  he  may  sue  in  any  juris- 
diction upon  his  individual  right. 
Inglehart  v.  Bierce,  36  HI.  133 
(1864),  mortgage  to  receiver;  Mer- 
chants' National  Bank  v.  Pa.  Steel 
Co.,  57  N.  J.  L.  336  (1894),  contract 
with  receiver;  Cagill  v.  Wooldridge 
Baxt.  (Tenn.)  580,  35  Am.  Rep. 
716  (1876);  Wilkins  v.  Culver,  23 
Blatch.  416,  25  Fed.  639  (1885), 
judgment  obtained  by  receiver. 

Where  by  statute  the  property  of 
an  insurance  company  is  on  disso- 
lution, vested  in  the  state  insurance 
commissioner,  he  has  capacity  to 
sue  or  intervene  in  a  foreign  state. 
Relfe  V.  Rundle,  103  U.  S.  222,  26 
L.  ed.  337  (1880);  Bockover  v.  Life 
Association  of  America,  77  Va.  85 
(1883). 

Where  a  receiver  has  once  taken 
rightful  possession  of  personal 
property,  situated  within  the  juris- 
diction of  his  appointment,  and  sub- 
sequently suffers  it  to  be  brought 
into  another  state  in  the  perform- 
ance of  his  duty,  and  his  posses- 
sion is  wrongfully  invaded,  he  may 
sue  in  the  latter  state  for  redress. 


816 


EQUITY  PRACTICE 


In  order  to  give  a  receiver  better  standing  for  purposes 
of  suit  in  a  foreign  jurisdiction,  the  practice  is  now  fre- 
quently pursued  of  compelling  an  involuntary  assignment 
of  the  property  in  question  by  the  defendant  to  the 
receiver.^ 

§  492.  Ancillary  receivers.  An  ancillary  receiver  is 
one  appointed  by  a  certain  court  in  aid  of  a  receiver  ap- 
pointed by  another  court,  to  protect  property  beyond  the 
jurisdiction  of  the  latter.'  Thus  where  a  receiver  has 
been  appointed  by  a  court  in  one  state,  a  court  of  an- 
other state  may  appoint  an  ancillary  receiver  to  protect 
property  involved  in  the  original  proceeding,  but  situated 


Cliicago,  Milwaukee  &  St.  Paul  R. 
Co.  V.  Keokuk  Xorthem  Line 
Packet  Co.,  lOS  111.  317  (1883). 

6.  Iglehart  v.  Beirce,  36  ILL  143 
(1869);  Buswell  v.  Iron  Hall,  161 
Mass.  224  (1894);  Taylor  t.  Co- 
lumbian Ins.  Co.,  14  Allen  (Mass.) 
353  (1867);  Graydon  v.  Church,  7 
Mich.  36  (1859);  Straughan  v. 
Hallwood,  30  W.  Ta.  274,  2S8 
(1887).  In  Witters  v.  Bank,  171 
Mass.  425  (1898),  the  court  said: 
"Whatever  may  be  true  of  such  an 
assignment  when  credits  of  the  as- 
signor are  attached  here  by  inhabi- 
tants of  Massachusetts,  we  perceive 
no  good  reason  why  we  should  pro- 
tect against  the  rights  of  the  as- 
signee an  attachment  made  by  an 
inhabitant  of  Vermont  after  the 
assignment." 

7.  Irwin  v.  Granite  State  Prov. 
Association,  56  X.  J.  Eq.  244 
(1897);  Jennings  v.  B.  Co.,  23  Fe.1. 
569  (1885);  Piatt  v.  B.  Co.,  54 
Fed.  569  (1893). 

The  court  of  primary  jurisdiction 
is  ordinarily  the  court  of  initial 
proceeding.  Holbrook  v.  Ford,  153 
HL  633,  46  Am.  St.  Bep.  917,  27 
L.  B.  A.  324  (1895).  And  it  gov- 
erns in  the  general  management  of 


the  trust.  Ames  v.  Union  Pacific 
By.  Co.,  60  Fed.  966  (1S94). 

The  court  of  ancillary  receiver- 
ship may  determine  the  claims  of 
its  own  citizens  and  the  determina- 
tion of  those  matters  will  be  re- 
spected by  the  court  of  primary 
jurisdiction.     Ibid. 

WTiere  the  law  of  a  state  in  which 
primary  receivers  of  an  insolvent 
corporation  are  appointed,  and  that 
of  the  state  of  an  ancillary  receiv- 
ership differ  with  respect  to  the 
provability  of  certain  classes  of 
claims,  such  claims  filed  with  the 
ancillary  receivers  when  proved 
will  be  rertiitted  to  the  court  of  pri- 
mary jurisdiction  for  allowance  or 
rejection.  WTielan  v.  Enterprise 
Transp.  Co.,  166  Fed.  138  (1908). 

Federal  courts  have  sometimes 
appointed  receivers  ancillary  to 
state  court  receivers.  Shinney  v. 
North  Am.,  etc.,  Assn.,  97  Fed.  9 
(C.  C.  1S99);  Sands  v.  Greely  Co., 
88  Fed.  130  (C.  C.  A.  1898) ;  Bust 
V.  United  Waterworks  Co.,  70  Fed. 
129  (C.  C.  A.  1895);  Williams  v. 
Hintermeister,  26  Fed.  789  (C.  C. 
1886);  Taylor  v.  Life  Assn.,  3  Fed. 
465   (C.  d  1880). 


RECEIVERS 


817 


in  the  other  state.^  The  appointment  of  the  ancillary 
receiver  may  be  obtained  upon  original  bill  for  that  pur- 
pose brought  in  the  second  court,  but  without  prejudice 
to  a  full  consideration  of  the  merits  if  a  motion  should 
afterward  be  made  to  annul  the  order  ;^  or  upon  inter- 
vening petition.^*'  The  ancillary  receiver  may  or  may  not 
be  the  same  person  as  the  first  receiver,  but  it  would 
seem  more  desirable  that  the  control  of  the  entire  estate 
be  vested  in  the  same  person  when  possible  and  such  is 
the  usual  practice.^^     The  necessity  of  appointing  an 


8.  Bidlack  v.  Mason,  26  N.  J.  Eq. 
230  (1875);  Evans  v.  Pease,  21  K. 
I.  187  (1899);  Williams  v.  Hinter- 
meister,  26  Fed.  889  (1886).  So 
a  Federal  court  in  one  district 
may  appoint  an  ancillary  receiver 
in  aid  of  a  receiver  appointed  in 
another  Federal  district.  Central 
Trust  Co.  V.  E.  Co.,  29  Fed.  618 
(1887). 

Each  of  the  appointing  courts  re- 
tains full  and  exclusive  jurisdiction 
over  the  assets  for  which  the  re- 
ceiver is  appointed.  Day  v.  Balti- 
more City  Postal  Telegraph  Co.,  66 
Md.  354  (1886);  Eeynolds  v.  Stock- 
ton, 140  U.  S.  254,  35  L.  ed.  464 
(1890);  Lewis  v.  Amer.  Naval 
Stores  Co.,  119  Fed.  391  (1902).  A 
judgment  against  an  ancillary  re- 
ceiver does  not  bind  assets  beyond 
the  jurisdiction  of  the  court  ap- 
pointing him.  Kirker  v.  Owings, 
98  Fed.  499   (1899). 

The  fund  of  an  ancillary  receiv- 
ership is  not  liable  for  the  expenses 
of  the  original  receivership.  Bow- 
ker  V.  Haight,  etc.,  Co.,  161  Fed. 
655   (1908). 

An  ancillary  receivership  will  be 
refused  where  it  will  prejudice  do- 
mestic creditors.  Borton  v.  Brines- 
Chase  Co.,  175  Pa.  209  (1896). 

9.  Piatt   V.   E.    Co.,   54  Fed.   569 

Whitehouse  E.  P.  Vol.  I — 52 


(1893).  A  bond  is  generally  re- 
quired of  an  ancillary  receiver,  and 
he  should  file  a  detailed  inventory 
and  estimate  of  values.  Haydock 
v.  Fisheries  Co.,  156  Fed.  988 
(1907). 

10.  Buswell  V.  Iron  Hall,  161 
Mass.  224  (1894). 

11.  The  district  courts  of  the 
United  States  almost  invariably  ap- 
point the  same  receiver  whom  the 
court  which  first  took  jurisdiction 
appointed.  Coltrain  v.  Templeton, 
106  Fed.  370  (1901).  In  taking 
accounts  in  case  of  ancillary  admin- 
istration, the  court  of  primary  ju- 
risdiction may  properly  indicate  its 
views  to  other  courts,  but  the  dis- 
cretion of  the  latter  will  control 
as  to  local  matters  of  administra- 
tion. Fletcher  v.  Min.  Co.,  84  Fed. 
555  (1898).  While  the  court  ap- 
pointing an  ancillary  receiver  will 
protect  local  creditors  having  prior 
rights  or  liens  on  the  local  assets, 
it  will  recognize  no  distinction  be- 
tween foreign  and  domestic  cred- 
itors whose  claims  stand  on  equal 
footing,  and  it  rests  in  the  court's 
discretion  whether  to  itself  distrib- 
ute the  assets  in  its  control  or  to 
transmit  to  the  primary  receiver. 
Sands  v.  Greely  &  Co.,  88  Fed.  130 
(1898). 


818 


EQUITY  PRACTICE 


ancillary  receiver  is  largely  avoided  by  the  custom  of 
courts  in  recognizing  the  rights  of  a  foreign  receiver  and 
allowing  him  to  take  possession  of  and  to  control  prop- 
erty in  anotlit-r  state,  od  the  principle  of  comity.*- 

§  493.  Sales  by  receivers.  A  court  which  has  the  power 
to  appoint  a  receiver  over  property  to  preserve  it  for  the 
benefit  of  the  party  who  may  prove  himself  entitled,  has 
as  a  necessary  consequence  the  right  to  order  a  sale  of 
such  property,  whether  real  or  i>ersonal.  whenever  such  a 
course  becomes  necessary  to  preserve  the  interests  of  all 
parties.^^    The  receiver  should  make  application  by  peti- 


It  is  held  that  receivers  ap- 
pointed in  various  states  for  a  mu- 
toal  benefit  association  whose  mem- 
bers hare  a  eonimon  right,  are  all 
aneillarj  to  the  one  first  ap- 
pointed, and  should  turn  orer  to 
him  the  funds  eoUeeted  for  pro  rata 
distribution  among  all  the  members 
in  an  the  states.  Smith  v.  Taggait, 
87  Fed-  W  (1897). 

It  is  generally  the  rule  for  the 
aneiUaiy  receiver  after  eolleetion 
of  assets  and  payment  of  ex- 
penses, to  remit  to  the  domiciliary 
receiver  for  distribution  to  the 
creditors.  Buswell  v.  Iron  HaD, 
161  Mass.  224  U^W),  *iipra;  Irwin 
V.  Granite  State  Prov.  Association, 
56  X.  J.  Eq.  244  (1S97 » :  Shinney  v. 
North  Amer.  Sav.  L.  &  R  Co.,  97 
Fed.  9  (1899).  Some  courts  how- 
erer  wiD  not  relinquish  possession 
as  against  their  own  citizens  claim- 
ing rights  in  the  funds.  Failey  v. 
Fee,  83  Md.  83,  55  Am.  St.  Bep. 
326,  32  L.  B.  A.  311  (1896);  Prow- 
ert  T.  Blank,  205  Pa.  299  (1903),— 
unless  they  require  bond  of  the  for- 
eign assignee  to  pay  the  creditors 
of  their  own  state,  or  retain  suf- 
ficient assets  for  distribution 
through  their  own  receivers  in  ac- 
cordance  with   the   decree   of  the 


primary  court,  Irwin  v.  Granite 
State  Prov.  Association,  mbi  tmpra; 
or  unless  the  decree  itself  di- 
rects the  ancillary  receiver  not 
to  transmit  the  assets  of  the  ancil- 
lary receivership  to  the  domiciliary 
receiver  until  provision  has  been 
made  for  attaching  creditors  in 
the  ancillary  state.  Thomley  v. 
Wakh  Co.,  200  Mass.  179  (1908). 

Preference  will  not  be  given  to 
domestic  creditors  unless  it  ap- 
pears that  there  is  danger  of  dis- 
crimination against  them  in  the 
forum  of  principal  receivership, 
and  then  only  so  far  as  is  neces- 
sary to  counteract  such  discrimina- 
tion- Thomley  v.  Walsh  Company, 
207  Mass.  62  (1910;. 

12.  See  See.  491,  ante,  p.  812. 

Where  however  a  foreign  re- 
ceiver has  no  such  title  that  he 
can  sue,  or  where  because  of  local 
policy  or  the  rights  of  local  cred- 
itors such  suit  is  not  allowed,  a 
bin  may  be  filed  for  the  appoint- 
ment of  an  ancillary  receiver. 
Bluefields  v.  Steele,  184  Fed.  584 
(1911). 

13.  Chesapeake,  etc.,  B.  Co.  t. 
Swasey.  62  X.  J.  Eq.  369  (1899); 
Marten  v.  Tan  Schaick,  4  Paige 
(Tt.)    479    (1834);    Smith   t.   Bur- 


RECEIVERS 


819 


tion  for  power  to  sell,^^  and  notice  should  be  given  to  all 
parties  interested.^'"' 

The  order  of  sale  should  specifically  describe  the  prop- 
erty to  be  sold/*^  and  the  terms,  conditions,  notice,  time 
and  method  of  sale,  whether  by  private  sale  or  by  public 
auction. ^'^  The  receiver  should  then,  as  in  the  case  of 
ordinary  sales  by  a  master,^*^  make  the  contract  of  sale 
with  the  purchaser,  and  report  his  doings  and  the  terms 
of  the  sale  to  the  court.  If  after  notice  and  hearing 
thereon  the  contract  of  sale  is  confirmed  by  the  court, 
the  receiver  will  then  be  ordered  to  execute  and  deliver 
to  the  purchaser  the  deed  of  conveyance  or  bill  of  sale, 
as  the  case  may  be.^^    The  court  may  refuse  to  confirm 


ton,  67  Vt.  514  (1895);  Nutter  v. 
Brown,  58  W.  Va.  237,  1  L.  E.  A. 
(N.  S.)  1083  (1905);  Cleveland 
Bank  v.  Shedd,  121  U.  S.  74,  30 
L.  ed.  877  (1902). 

14.  Smith  V.  Burton,  67  Vt.  514 
(1895).  Eeeeivership  sales  are 
regulated  in  some  states  by  stat- 
ute, but  generally  in  the  absence 
of  statutes  the  receiver  cannot  sell 
without  the  order  of  court.  Jack- 
son V.  Horton,  126  111.  566  (1888); 
Mason  v.  Hubner,  104  Md.  554 
(1906). 

15.  Phila.  R.  Co.  v.  Little,  41 
N.  J.  Eq.  519   (1886). 

16.  Dixon  V.  Rutherford,  26  Ga. 
149   (1858). 

17.  Hooper  v.  Winston,  24  111. 
353  (1860);  In  re  Newark  Sav. 
Inst.,  28  N.  J.  Eq.  552  (1877).  A 
certain  amount  of  discretion  may 
be  used  by  a  receiver  as  to  whether 
the  sale  should  be  made  as  a  whole 
or  in  parcels.  National  Bank  of 
the  Metropolis  v.  Sprague,  20  N.  J. 
Eq.  170   (1869). 

Where  a  consent  decree  directs 
a  sale  at  public  auction  and  the 
receiver  desires  to  have  a  private 


sale,  the  proper  course  is  for  the 
court  on  petition  of  the  receiver 
to  pass  an  order  to  show  cause  why 
such  a  sale  should  not  be  author- 
ized. South  Baltimore  Brick  & 
Tile  Co.  V.  Kirby,  89  Md.  52  (1899). 
It  is  better  practice  not  to  in- 
clude in  the  order  a  direction  as 
to  applying  the  proceeds  of  the 
sale,  as  this  is  a  matter  for  adjust- 
ment after  a  final  decree  settling 
the  rights  of  the  parties  in  inter- 
est. Krohn  v.  Weinberger,  47  W. 
Va.  127   (1899). 

18.  See  Chap.  XX,  "Masters," 
Sec.  424,  ante,  p.  683. 

19.  Deaford  v.  MacWatty,  82 
Md.  168  (1896);  Patterson  v.  Pat- 
terson, 207  Pa.  252  (1903);  Koontz 
v.  Northern  Bank,  16  Wall.  (U. 
S.)  196,  21  L.  ed.  465  (1872).  This 
is  the  better  practice  since  if  the 
deed  is  executed  and  delivered  be- 
fore confirmation,  rights  of  inno- 
cent third  parties  may  intervene 
and  prevent  the  court  from  doing 
justice  by  refusing  to  confirm.  In 
Koontz  V.  Northern  Bank,  the 
court  said: 

"There  was   undoubtedly  an   ir- 


820 


EQUITY  PRACTICE 


the  sale  where  the  price  is  grossly  inadequate.- "  and  the 
sale  and  deed  may  be  set  aside  by  the  court  after  con- 
firmation, in  case  of  fraud,  any  time  before  the  rights  of 
third  parties  have  intei-vened.--  A  receiver,  like  any 
trustee,  cannot  purchase  at  his  own  sale,  and  if  he  does 
the  sale  may  be  avoided  by  the  parties  in  interest  at  their 
election.--  or  he  wiU  be  declared  trustee  of  the  property 
for  their  benefit.-^ 


regularity  committed  bv  the  re- 
ceiver in  executing  his  conveyance 
before  the  sale  was  confirmed  by 
the  court,  and  until  then  the  con- 
tract of  purchase  was  not  binding 
upon  that  officer.  But  his  convey- 
ance was  not  on  that  account  void; 
it  was  only  voidable.  If  the  deed 
Lad  been  executed  after  the  con- 
firmation, it  would  have  taken  ef- 
fect by  relation  as  of  the  day  of 
the  sale.  If  the  confirmation  had 
been  denied,  the  deed,  resting  upon 
the  sale,  would  have  become  in- 
operative. But  the  confirmation 
having  been  made,  all  objection  to 
the  time  at  which  the  deed  was 
executed  is  removed. 

"The  authority  conferred  by  the 
court  upon  the  receiver  to  sell,  car- 
ried with  it  authority  to  give  to 
the  purchaser  evidence  of  a  trans- 
fer of  title.  And  that  the  court 
intended  he  should  exercise  this 
implied  authority,  by  executing 
deeds  where  land  was  sold,  is  evi- 
dent from  the  requirement  that  he 
should,  in  ease  of  sale  on  credit, 
retain  a  lien  or  a  deed  of  trust  on 
the  lands  from  the  purchaser." 

No  confirmation  is  necessary 
where  the  terms  of  sale  are  ex- 
pressed in  the  order  for  making 
the  sale.  Tiles  v.  Brown,  124  Fed. 
133    (1903). 


20.  See  Porch  v.  Agnew  Co.,  66 
X.  J.  Eq.  232  (1904). 

Confirmation  will  not  be  denied 
merely  because  some  other  bidder 
is  willing  to  offer  more  for  the 
property.  Parker  v.  Bluffton  Car 
Wheel  Co.,  lOS  Ala.  140  (1895); 
Fleming  v.  Fleming  Hotel  Co.,  70 
X.  J.  Eq.  509  (1905).  See  Bethle- 
hem Iron  Co.  V.  Phila.  B.  Co.,  49 
X.  J.  E.  356  (1892). 

Any  party  interested  may  move 
for  or  resist  confirmation  of  the 
sale.  So.  Baltimore  Brick  Co.  v, 
Kirby.  S9  Md.  52  (1S99);  Patterson 
V.  Patterson,  207  Pa.  252  (1903). 

21.  Koontz  V.  Xorthem  Bank,  16 
WaU.  196,  21  L.  el.  465  (1872).  If 
such  rights  have  intervened,  the 
remedy  is  against  the  officer  per- 
sonally or  by  suit  on  his  bond. 
Ibid.  But  a  sale  will  not  be  set 
aside  after  confirmation  on  account 
of  a  subsequent  higher  bid  in  the 
absence  of  fraud.  Bogers  v. 
Rogers  Locomotive  Co.,  62  X.  J. 
Eq.  Ill   (1901). 

The  jurisdiction  of  the  court 
may  be  questioned  by  the  pift-- 
chaser  on  petition  to  set  aside  the 
sale.  Harned  v.  Beacon  Hill  Eeal 
Estate  Co.,  80  AtL  805  (Del  1911). 

22.  Pangbum  v.  American  V.  S. 
&  L.  Co.,  205  Pa.  93  (1903). 

23.  Shadewald  v.  White,  74 
Minn.  208    (1898). 


RECEIVERS  821 

§  494.  Receivers'  certificates.  The  court  has  the  power, 
when  necessary  to  raise  funds  required  for  the  proper 
management  of  the  property  or  business,  to  authorize  the 
receiver  to  issue  what  are  known  as  receiver's  certifi- 
cates. These  are  merely  evidences  of  indebtedness,  en- 
titling the  holder  to  receive  from  the  receivership  fund 
the  amount  specified  thereon  if  the  fund  is  sufficient  for 
that  purpose,  otherwise,  a  pro  rata  share  with  the  other 
certificate  holders.^^  Such  certificates,  if  issued  without 
authority  of  court,  are  void,^-^  and  they  must  also  be  is- 
sued by  the  receiver  solely  for  the  purpose  authorized.^'' 
They  are  authorized  by  the  court  only  with  great  cau- 
tion 2'^  and,  upon  notice  to  those  interested,^^  and  chiefly 
in  the  case  of  railroads.  Certificates  are  taken  by  the 
purchasers  subject  to  notice  of  all  limitations.^'^  They 
do  not  possess  the  negotiable  attributes  of  ordinary  com- 
mercial paper,  but  are  transferred  by  assignment,  and 
taken  subject  to  all  previously  existing  equities.'^"^     The 

24.  Smith  on  Eeceiverships,  Sec.  of  the  parties  interested  in  the 
287;  Osborne  v.  Colliery  Co.,  96  Va.       funrl." 

58     (1898);    Karn    v.    Rorer    Iron  28.  Where  the  certificates  are  to 

Co.,  86  Va.  754  (1890) ;  Wallace  v.  be  made  a  paramount  lien,  they  can 

Loomis,  97  U.  S.  146.  24  L.  ed.  895  only   be  issued  upon   notice  to   all 

(1877);  International  Trust  Co.  v.  parties     who     would     be     affected 

Decker,   152   Fed.   78,   11   L.   E.   A.  thereby,  or  upon  consent  or  a  full 

(N.  S.)  152  (1907).  opportunity  to  be  heard.    Lockport 

25.  Lockport  Felt  Co.  v.  United  Felt  Co.  v.  United  Box,  etc.,  Co., 
Box  Board  &  Paper  Co.,  74  N.  ,J.  74  N.  J.  Eq.  686  (1908);  Union 
Eq.  686  (1908);  Stanton  v.  E.  Co.,  Trust  Co.  v.  111.  Co.,  117  U.  S.  434, 
31  Fed.  585   (1887).  456,  29  L.  ed.  963  (1885). 

26.  Union  Trust  Co.  v.  R.  Co.,  7  29.  Turner  v.  Peoria,  etc.,  R.  Co., 
Fed.   513    (1881).  95    111.    134,    35   Am.   St.   Rep.    144 

For  what  objects  a  railroad  re-  (1880);  Lewis  v.  Linden  Steel  Co., 
ceiver's  certificates  may  be  issued    .  183    Pa.    248     (1897);    Mercantile 

see  Davis  v.  Alton  J.  &  P.  Ry.  Co.,  Trust   Co.    v.   R.   Co.,   50   Fed.   874 

180   111.   App.   1    (1913).  (1892). 

27.  In  Wallace  v.  Loomis,  97  30.  McCarthy  v.  Crawford,  238 
U.  S.  146,  24  L.  ed.  895  (1877),  Mr.  HI.  38  (1908);  Union  Trust  Co.  v. 
Justice  Brady  said:  "It  is  un-  111.  Co.,  117  U.  S.  444,  456,  29  L. 
doubtedly  a  power  to  be  exercised  ed.  963  (1885);  Bernard  v.  Union 
with  great  caution,  and  if  possible  Trust  Co.,  159  Fed.  620  (1908). 
with   the    consent    or   acquiescence 


822 


EQUITY  PRACTICE 


certificates  may  by  order  of  court  be  made  a  first  lien  on 
the  property,  prior  even  to  first  mortgages.^  ^ 

§  495.  Receivers'  accounts.  It  is  the  duty  of  a  receiver 
to  make  a  careful  and  complete  inventory  of  all  the  prop- 
erty in  his  possession;  to  keep  an  accurate  account  of  all 
his  receipts  and  disbursements,  and  report  the  same  to 
the  court  which  appointed  him.^-  In  some  states  chan- 
cery rules  determine  the  time  for  filing  inventories  and 
accounts."-^    As  a  general  rule  the  receiver  should  report 


31.  Wallace  v.  Loomis,  97  U.  S. 
146,  24  L.  ed.  895  (1877).  In  this 
case  they  were  issued  for  neces- 
sary repairs  and  allowed  previ- 
ously. So  in  Union  Trust  Co.  v. 
111.  Co.,  117  U.  S.  444,  29  L.  ed.  963 
(1885),  where  they  were  issued  to 
pay  tax  liens.  See  also  Osborne  v. 
Colliery  Co.,  96  Va.  58  (1898). 

This  doctrine  of  the  equity  court 
making  receivers'  certificates  a 
first  lien  on  the  property  is  con- 
fined mostly  to  cases  of  railroad 
receiverships  where  the  parties  in 
interest  agree,  and  where  it  is  nec- 
essary to  raise  money  to  preserve 
the  property.  Hoover  v.  Mont- 
clair  &  G.  L.  R.  Co.,  29  N.  J.  Eq.  4 
(1878).  See  also  Central  Trust  Co. 
V.  Sheffield,  etc.,  R.  Co.,  44  Fed.  526 
(1891).  It  will  not  be  extended  to 
a  case  where  the  issuance  of  cer- 
tificates is  made  in  order  to  com- 
plete unfinished  work  on  the  rail- 
road. Meyer  v.  Johnston,  53  Ala. 
237  (1875).  Certificates  of  a  re- 
ceiver of  a  private  corporation 
have  generally  no  priority  over  ex- 
isting antecedent  liens.  Hooper  v. 
Central  Trust  Co.,  81  Md.  559,  29 
L.  R.  A.  262  (1895).  Some  cases 
have  however  allowed  such  pri- 
ority in  private  corporation  cases 
where  it  was  necessary  to  raise 
money  in  some  way  to  preserve  the 


property  from  destruction  and  put 
it  in  salable  condition.  American 
Pig  Iron  Storage  Warrant  Co.  v. 
German,  126  Ala.  194,  85  Am.  St. 
Rep.  21  (1899);  Karn  v.  Rorer  Iron 
Co.,  86  Va.   754   (1890). 

32.  Bank  v.  Terhune,  50  N.  J. 
Eq.  297  (1892);  Musgrave  v.  Nash, 
3  Edw.  Ch.  (N.  Y.)  172  (1837). 

32a.  Delaware.  Rule  101.  First 
report  within  three  months  of  date 
of  appointment  and  thereafter  at 
expiration  of  each  six  months. 

Florida.  Rule  47.  Inventory 
under  oath  within  twenty  days 
after  appointment.  Inventory  and 
account  under  oath  at  expiration 
of  three  months  from  date  of  ap- 
pointment and  every  three  months 
thereafter.* 

Maine.  Public  Laws  of  1905, 
Chap.  85,  Sec.  3.  Receivers  of  cor- 
porations must  report  as  often  as 
every  six  months. 

New  Hampshire.  Rule  111.  Re- 
ceivers of  corporations  must  file 
inventory  within  thirty  days  after 
appointment,  and  also  file  accounts 
under  oath  on  the  first  days  of  Jan- 
uary and  July. 

New  Jersey.  Rule  189.  Inven- 
tory under  oath  within  six  months 
after  appointment.  Inventories 
and  accounts  under  oath  annually 
thereafter. 


RECEIVERS 


823 


at  regular  intervals  ^^  where  tlie  receivership  is  long 
continued,  otherwise  upon  the  completion  of  his  duties, 
or  upon  application  of  any  party  in  interest.^^  If  any 
objection  is  made  to  the  allowance  of  a  receiver's  ac- 
count, it  is  usual  to  refer  it  to  a  master  to  determine  its 
correctness  upon  hearing,^-^  and  notice  of  such  hearing 
should  be  given  all  parties  in  interest.^*^ 

§  496.  Compensation  of  receivers.  The  compensation 
of  a  receiver  is  to  be  limited  to  such  an  amount  as  will 
afford  a  reasonable  compensation  for  the  services  re- 
quired and  rendered,  to  a  person  of  ordinary  standing 
and  ability,  competent  for  such  services;  and  is  not  to 
be  based  on  the  usages  or  rates  of  profit  which  prevail 
in  any  branch  of  business,  nor  upon  the  special  standing 


Apart  from  any  statute  or  rule 
of  court,  it  has  been  held  that  a 
receiver  of  an  insolvent  corpora- 
tion is  not  liable  to  account  until 
he  has  completed  his  duties,  unless 
sooner  cited  by  the  court.  Special 
Bank  Commissioners  v.  Franklin 
Savings  Bank,  11  E.  I.  557  (1877). 

33.  Commonly  once  a  year. 
Fletcher  v.  Dodd,  1  Ves.  (Eng.  Ch.) 
85;  Stretch  v.  Gowdey,  3  Tenn.  Ch. 
565  (1877).  Or  at  reasonable  in- 
tervals. Felton  V.  Felton,  47  W. 
Va.  27   (1899). 

34.  Vermont  E.  Co.  v.  E.  Co.,  50 
Vt.  500  (1877).  The  application 
must  be  made  by  a  party.  But  the 
account  is  rendered  to  the  court 
and  not  to  a  party.  Musgrave  v. 
Nash,  3  Edw.  (N.  Y.)  Ch.  172 
(1837).  The  court  may  require  an 
accounting  of  its  own  accord.  In 
some  states  there  are  provisions  in 
the  rules  of  court  for  compelling 
accounts  to  be  rendered  by  delin- 
quent receivers.  See  Fla.  Eq.  Eule 
47'  and  N.  J.  Eq.  Eules  190  and 
191.    In  Illinois,  notice  of  the  filing 


of  reports  of  receivers  must  be 
given  to  each  and  all  solicitors  in 
the  cause.  Ch.  Eule  12,  Circuit 
Court,  Cook  County;  Ch.  Eule  14, 
Superior  Court,  Cook  County. 

35.  Hayden  v.  Title  Co.,  55  II!. 
App.  241  (1894);  Strauss  v.  Casey 
Machine,  etc.,  Co.,  69  N.  J.  Eq.  19 
(1905) ;  Cowdrey  v.  E.  Co.,  1  Woods 
(U.  S.)  331  (1870).  Any  person 
having  an  interest  in  the  estate  has 
a  right  to  except  to  the  receiver's 
account.  The  distinction  between 
a  receiver 's  report  and  that  of  a 
master  is  that  the  former  has  no 
binding  effect  until  confirmed.  Fel- 
ton V.  Felton,  47  W.  Va.  27  (1899). 

36.  Heffron  v.  Eice,  40  111.  244 
(1866).  A  receiver  is  himself  a 
party  in  interest  and  entitled  to 
be  heard.  Herndon  v.  Hurter,  19 
Fla.  397  (1882).  Where  a  receiver 
dies  and  an  account  is  asked  for, 
the  personal  representatives  of  the 
receiver  should  be  nia<le  parties. 
Overholt  v.  Old  Dominion  Mfg.  Co., 
98  Mich.  654  (1900). 


824 


EQUIT\   PRACTICE 


of  the  person  appointed.""  In  some  states  a  commission 
is  allowed  by  analogy  on  the  same  basis  as  that  allowed 
executors  and  trustees,^*  and  in  other  states  it  is  cus- 
tomary to  allow  a  fixed  commission  on  receipts  and  dis- 
bursements.'^'^ The  amount  which  may  thus  be  reason- 
ably allowed  a  receiver,  as  also  the  counsel  employed 
by  him,  is  to  be  determined  by  the  court,^*^'  upon  evidence 
if  necessary ,^^  and  in  accordance  ^^ith  the  personal  knowl- 
edge of  the  court  as  to  the  services  rendered  by  the  re- 
ceiver."*-    Full  compensation  will  not  be  allowed  till  the 


37.  Grant  v.  Bryant,  101  Mass. 
567   (1869). 

38.  Sullivan  Timber  Co.  v.  Black. 
159  Ala.  570  (1909);  Tome  v.  King, 
64  Md.  166  (1885)  ;  Lichtenstein  v. 
Dial,  68  Miss.  54  (1S90)  ;  Stretch 
V.  Gowdev,  3  Tenn.  Ch.  565  (1877). 
This  compensation  may  be  varied 
on  account  of  the  circumstances  of 
the  case.  Tome  v.  King,  64  Md. 
166   (1909). 

39.  Schwartz  v.  Keystone  OU 
Co.,  153  Pa.  283  (1893),  2  to  5% 
is  the  average  although  it  is  some- 
times as  high  as  10%;  Stretch  v. 
Gowdev,  3  Tenn.  Ch.  565  (1877), 
57o;  Howard  v.  Gose,  112  Va.  552 
(1911),  5%. 

Where  amounts  received  and  dis- 
bursed are  large,  the  commission  is 
sometimes  fixed  by  allowance  of 
a  salary  or  lump  sum.  Weigand  v. 
Alliance  Supply  Co.,  44  W.  Va.  133 
(1897). 

In  determining  the  compensa- 
tion, it  has  been  said  that  "the  ob- 
ject of  parties  of  a  receivership  is 
to  conserve  the  property  for  the 
benefit  of  the  creditors  and  owners, 
and  not  to  eat  it  up  in  fees,  costs 
and  expenses. ' '  Goodman  v.  Wil- 
der, 234  ni.  362   (1908). 

Where  there  is  no  statute  or  rule 
of  court,  the  amount  of  commission 


allowed  as  discretionary  with  the 
court,  although  it  must  be  reason- 
able. Culver  V.  H.  E.  Allen,  etc., 
Assn.,  206  111.  40  (1903) ;  Lembeck 
V.  Jarvis  Terminal  Coal  Storage 
Co.,  68   X.  J.  Eq.   352    (1904). 

40.  Stuart  v.  Boulware,  133  U. 
S.  78,  33  L.  ed.  568  (1889).  Since 
the  compensation  charged  by  the 
receiver  is  an  item  of  his  account, 
it  would  seem  that  it  might  be  re- 
ferred to  a  master  when  allowance 
is  resisted,  to  determine  the  facts 
as  to  the  receiver's  services.  Ma- 
gee  V.  Cowperthwaite,  10  Ala.  966 
(1847);  McAnrow  v.  Martin,  183 
111.  467,  56  N.  E.  168  (1899);  Cow- 
drey  V.  E.  Co.,  1  Woods  (U.  S.) 
331   (1870). 

A  decree  directing  a  receiver  to 
fix  and  retain  compensation  and  to 
fix  and  pay  solicitor's  fees  is  er- 
roneous. Briggs  V.  Eeynolds,  176 
111.  App.  420  (1912). 

41.  Heffron  v.  Eice,  40  111.  App. 
241  (1S90). 

Where  objection  is  made  to  the 
amount  of  the  receiver 's  compen- 
sation the  burden  is  on  him  to  show 
the  reasonableness  of  the  services. 
Commonwealth  v.  Monongahela 
Valley  Bank  of  Duquesne,  239  Pa. 
254  (1913). 

42.  Culver   v.    H.   B.   Allen,   etc., 


RECEIVERS 


825 


close  of  the  receivership,  as  an  item  in  the  receiver's  final 
account.^^ 

It  appears  to  be  established  by  the  weight  of  authority 
that  the  expenses  of  receivership,  including  the  receiver's 
compensation,  disbursements  and  costs  incurred,  are 
taxed  against  the  plaintiff  in  the  suit,  when  the  appoint- 
ment is  proved  to  have  been  improper  and  unwarranted,^^ 


Assn.,  206  111.  40  (1903);  Olson  v. 
State  Bank,  72  Minn.  320  (1898). 
The  court  will  not  allow  a  receiver 
special  compensation  for  legal  serv- 
ices rendered  by  himself.  Matter 
of  Bank  of  Niagara,  6  Paige  (N. 
Y.)  213  (1836).  No  compensation 
will  be  allowed  where  the  receiver 
has  wasted  the  estate  through  neg- 
ligence. Pangbern  v.  American 
Vault  Safe  &  Lock  Co.,  205  Pa. 
93   (1903). 

In  fixing  the  compensation  of  a 
receiver,  each  case  should  be  de- 
termined upon  its  merits,  and  the 
court  "should  consider  the  amount 
and  character  of  the  time  and  the 
responsibility  devoted  to  the  duty. 
This  includes  the  kind  and  extent 
of  time  and  labor  rightly  bestowed 
by  the  receiver  upon  the  trust,  the 
responsibility  assumed,  the  charac- 
ter and  extent  of  the  property  com- 
mitted to  his  care,  the  beneficial 
results  of  the  management,  and 
other  matters  that  are  incident  to 
the  trust  and  its  efficient  execu- 
tion." Hazen  v.  Stevens,  60  Fla. 
460  (1910).  See  to  the  same  ef- 
fect, Deputy  v.  Delmar  Lumber 
Mfg.  Co.,  85  Atl.  669   (Del.  1913). 

43.  Meissler  v.  Meissler,  94  111. 
App.  396  (1900);  Maxwell  v.  Mfg. 
Co.,  82  Fed.  214  (1897).  While 
this  is  the  general  rule,  yet  under 
certain  circumstances  compensation 
ma.y  be  allowed  from  time  to  time. 
Special     Bank     Commissioners     v. 


Franklin  Savings  Institution,  11  R. 
L  557,  559  (1877). 

The  receiver  may  have  a  lien 
until  the  charges  and  compensation 
is  determined.  Montpelier  Corp. 
&  Metal  Works  v.  Dilsaver,  169 
111.  App.  279   (1912). 

44.  Wills  Valley  Mining  &  Mfg. 
Co.  V.  Gallway,  155  Ala.  628  (1908) ; 
Moyers  v.  Coiner,  22  Fla.  422 
(1886);  McAnrow  v.  Martin,  183 
111.  467  (1900);  People  v.  Jones, 
33  Mich.  303  (1876);  Verplanck  v. 
Ins.  Co.,  2  Paige  (N.  Y.)  438 
(1831);  Couper  v.  Shirley,  75  Fed. 
168  (1896)  ;  Ee  Locov,  142  Fed.  960 
(1905).  It  has  been  held  that  if 
there  are  no  funds  to  pay  the  re- 
ceiver, he  may  look  to  the  parties 
for  whose  benefit  the  receivership 
was  granted.  Ephraim  v.  Pacific 
Bank,  129  Cal.  589  (1900);  Tome 
v.  King,  64  Md.  166  (1885).  Contra: 
Miller  v.  Amer.  Light  &  Fixture 
Co.,  181  111.  App.  623  (1913);  At- 
lantic Trust  Co.  V.  Chapman,  208 
U.  S.  360  (1908). 

But  where  the  fund  is  sufficient 
to  pay  expenses  of  receivership  the 
plaintiff  cannot  be  held  responsible 
for  any  deficiency  in  the  operation 
of  the  property  as  a  business.  Mc- 
Lean V.  Gillespie,  130  111.  App.  356 
(1906). 

By  statute  in  Illinois  a  plaintiff 
who  procures  the  appointment  of 
a  receiver,  and  then  dismisses  his 
bill,  must  pay  the  compensation  of 


826 


EQUITY  PRACTICE 


otherwise  against  the  receivership  fimd.^'  But  the  court 
may  exercise  its  discretion,  and  apportion  the  costs  as 
justice  may  require.*"^ 

§  497.  Removal  of  receivers.  The  courts  having  power 
to  appoint  a  receiver  must,  as  a  necessaiy  consequence, 
have  power  to  remove  him  for  cause  shown  at  any  stage 
of  the  proceedings.*"    Thus  a  receiver  may  be  removed 


the  receiver,  including  his  solic- 
itor *s  fees.  Burrowes  v.  MerrLfield, 
243  111.  362  (1910). 

45.  Saulsbury  v.  Coal  Co.,  110 
Ala.  585  (1895);  Farwell  v.  TeL 
Co.,  161  ni.  522  (1896):  Preston 
National  Bank  v.  Smith  Middlings 
P.  Co.,  102  Mich.  462  (1S94^; 
Penns.  Co.  v.  B.  Co.,  93  Fed.  60 
(1899).  He  should  not  be  com- 
pelled to  resort  to  independent 
proceedings  to  collect  his  commis- 
sions and  disbursements.  Mauran 
V.  Crown  Carpet  Lining  Co.,  23  B. 
I.  344  (1901).  The  receiver  may 
be  paid  his  disbursements  and  com- 
pensation out  of  the  fund  in  the 
first  place  regardless  of  where  the 
costs  mav  ultimately  fall.  Be  T.  E. 
Hall  Co..  159  Fed.  73  (1907).  And 
such  reasonable  amounts  as  are 
proper  and  necessary  in  the  due 
execution  of  the  receivership  may 
be  refunded  to  him.  Campbell  v. 
Charleston  St.  By.  Co.,  80  S.  E.  809 
(W.  Va.  1914). 

There  is  some  conflict  of  au- 
thority where  the  appointment  of 
the  receiver  was  proper,  but  the 
plaintiff  fails  to  obtain  his  final 
relief,  some  authorities  holding 
that  in  such  case  the  plaintiff 
should  pay  the  costs.  Highley  v. 
Deane,  &4  HI.  App.  3S9  (1896); 
Bichmond  v.  Irons.  121  U.  S.  27, 
30  L.  ed.  864  (1886).  Others  hold 
that  it  must  be  paid  out  of  the 
fund   in   such    case.     Beckwith   v. 


Carroll,  56  Ala.  12  (1876);  Clark  v. 
Brown,  119  Fed.  130  (1902):  Fergu- 
son V.  Dent,  46  Fed.  S8  (1S91). 

Where  a  receivership  does  not 
involve  administration  of  a  fund 
in  which  both  plaintiff  and  defend- 
ant have  an  interest,  but  where  the 
suit  is  merely  to  try  title  to  the 
fund  between  the  parties,  the  los- 
ing party  should  pay  the  costs  in- 
cluding the  compensation  of  a  re- 
ceiver, but  the  court  may  make  a 
provisional  allowance  of  the  costs 
out  of  the  fund.  Nutter  v.  Brown, 
58  W.  Va.  237   (1905). 

46.  Palmer  v.  Texas,  212  U.  S. 
118,  53  L.  ed.  435  (1908).  An 
ex  parte  order  fixing  the  compen- 
sation of  a  receiver  may  be  modi- 
fied and  the  compensation  reduced 
at  the  final  accoujitLng.  7m  re  An- 
gell.   131    Mich.   345    (1902). 

47.  High  on  Beceivers,  See.  820; 
Wiswell  V.  Starr,  50  Me.  381 
(lS6i');  /«  re  Colbin,  3  Md.  Ch. 
300  (1853);  McCullough  v.  Trust 
Co.,  29  X.  J.  Eq.  217  (1878);  Young 
V.  B.  Co.,  2  Woods  (U.  S.)  606 
(1S75). 

In  Mississippi  a  receiver  may  be 
removed  in  vacation.  Code,  Sec. 
627. 

In  the  Federal  practice  a  motion 
to  remove  or  discharge  a  receiver 
may  be  made  in  chambers.  Wal- 
ters V.  Anglo-American  Mortg.,  etc., 
Co..  50  Fed.  317  (1892). 


RECEIVERS 


827 


when  the  appointment  was  improper  or  unwarranted,^^ 
or  fraudulent  and  collusive;''^  or  where  he  proves  not  to 
be  disinterested;  ^^  or  for  misconduct;  ^^  for  disagreement 
among  joint  receivers;  ^^  for  failure  or  refusal  to  provide 
additional  security;  ^^  for  bankruptcy  of  a  receiver;^'* 
and  for  ill  health,  on  the  receiver's  own  application.^^  A 
receiver  will  not  ordinarily  be  removed  on  his  own  appli- 
cation, however,  without  some  sufficient  cause.^^ 

The  exercise  of  this  power  of  removal  however  rests 
entirely  within  the  discretion  of  the  court  under  the  cir- 
cumstances of  each  case.^^  The  application  for  removal 
should  be  made  by  petition  ^*  to  the  court  of  appoint- 
ment,^^ setting  forth  the  causes,  and  giving  notice  to 


48.  Walters  v.  Anglo  Am.  Co., 
50  Fed.  316   (1892). 

49.  Sage  v.  E.  Co.,  125  U.  S.  361, 
31  L.  ed.  634  (1887);  Wood  v.  Ore- 
gon Co.,  55  Fed.  901  (1893). 

50.  Williamson  v.  Wilson,  1 
Bland  (Md.)  418  (1828);  Detroit 
Bank  v.  Barnum  Works,  60  Mich. 
487  (1886);  Hilliard  v.  Sterling- 
worth  E.  Supply  Co.,  221  Pa.  503 
(1908);  Davis  v.  Gray,  16  Wall. 
203,  217,  21  L.  ed.  447  (1872);  At- 
kins V.  Ey.  Co.,  29  Fed.  161  (1886). 
The  mere  relation  of  receiver  to 
the  parties  or  to  the  subject  mat- 
ter will  not  require  his  removal. 
Iroquois  Furnace  Co.  v.  Kimbark, 
85  111.  App.  399  (1899);  Moran  v. 
Wayne  Circuit  Judge,  125  Mich. 
6   (1900). 

51.  Griffith  v.  Griffith,  2  Ves.  Sr. 
401;  Atkinson  v.  Smith,  89  N.  C. 
72  (1883)  (failure  to  comply  with 
order  of  court  to  account) ;  Mc- 
Cullough  v.  Trust  Co.,  29  N.  J.  Eq. 
217  (1878);  Handy  v.  E.  Co.,  31 
Fed.  689   (1887). 

52.  Meier  v.  Ey.  Co.,  5  Dill.  (U. 
S.)   476   (1878). 


53.  Schakelford  v.  Schakelford, 
32   Gratt.   (Va.)   481   (1879). 

54.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
p.  1765;  Ellard  v.  Cooper,  17  Ir. 
Ch.  (N.  S.)   151. 

55.  Eichardson  v.  Ward,  6  Mad. 
(Eng.  Ch.)   266. 

56.  Beers  v.  Bank,  4  Edw.  (N. 
Y.)  Ch.  277  (1843).  But  a  receiver 
may  resign  at  any  time.  Hegewisch 
V.  Silver,  140  N.  Y.  414  (1913). 

57.  In  re  Angell,  131  Mich.  345 
(1902);  Detroit  First  National 
Bank  v.  E.  T.  Barnham,  etc., 
Works,  60  Mich.  487  (1896);  Hil- 
liard V.  Supply  Co.,  221  Pa.  503 
(1908). 

58.  Farmers'  Loan  &  Trust  Co. 
V.  Northern  Pac.  Ey.  Co.,  61  Fed. 
546  (1894). 

59.  Chattanooga  T.  E.  Co.  v.  Fel- 
ton,  69  Fed.  273  (1895);  Young  v. 
E.  Co.,  2  Woods  (U.  S.)  606,  619. 

Where  a  cause  in  a  state  court 
was  removed  to  a  United  States 
court,  an  injunction  having  been 
granted  and  a  receiver  appointed 
in  the  state  court  prior  to  removal, 
it  was  held  that  a  motion  to  re- 
move the   receiver  might   properly 


828 


EQUITY  PRACTICE 


the  receiver*''^  and  also  to  all  parties  in  interest.*^ ^ 
§  498.  Discharge  of  receivers.  A  receiver  will  be  dis- 
charged by  the  court  whenever  the  necessity  for  his 
office  ceases  to  exist,*^^  whether  during  the  course  of  the 
proceedings  "^^  or  upon  the  termination  of  the  suit.'^^  The 
functions  of  a  receiver  usually  terminate  with  the  final 
decree.*^^     The  receiver  is  not  however  ipso  facto  dis- 


be  made  in  the  Federal  court  at 
any  time  after  filing  the  record,  in 
as  much  as  no  motion  had  been 
made  in  the  state  court  at  the  time 
of  removal.  Texas,  etc.,  Ry.  Co.  v. 
Rust,  17  Fed.  275,  280  (1883). 

60.  Smith  v.  Trenton  Co.,  4  N. 
J.  Eq.  505  (1845).  But  in  Florida 
it  has  been  held  that  a  receiver  is 
not  entitled  to  notice  in  any  case, 
as  he  is  merely  an  officer  of  the 
court  and  not  a  party  in  interest. 
L'Engle  v.  Florida  Central  R.  Co., 
14  Fla.  266   (1873). 

61.  Coburn  v.  Ames,  57  Cal.  201 
(1881);  Attrill  v.  Improvement  Co., 
25  Hun  (X.  Y.)  509  (1881).  After 
removal  the  court  may  appoint  a 
successor  without  further  notice. 
Nichol  V.  Murphy,  145  Mich.  424 
(1906).  The  new  receiver  is  re- 
sponsible for  the  acts  of  his  pred- 
ecessor. Knickerbocker  v.  Benes, 
195  111.  434   (1902). 

62.  Mercantile  Trust,  etc.,  Co.  v. 
Florence  Water  Co.,  Ill  Ala.  119 
(1895). 

The  subjects  of  removal  and  dis- 
charge of  receivers  are  sometimes 
considered  together  and  the  same 
authorities  cited  for  each,  and  the 
terms  are  frequently  used  inter- 
changeably; but  there  is  a  clear 
line  of  distinction.  A  receiver  is 
removed  for  cause  shown  in  order 
to  appoint  a  successor,  while  a  re- 
ceiver is  discharged  when  the  pur- 
poses of  the  receivership  have  been 


accomplished.  A  removal  therefore 
merely  affects  the  person  of  the  re- 
ceiver, while  a  discharge  termi- 
nates the  receivership.  High  on 
Receivers,  Sec.  832. 

63.  Tewart  v.  Lawson,  L.  R.  18 
Eq.  490;  as  where  the  plaintiff "^s 
claim  has  been  satisfied.  Davis  v. 
Marlborough,  2  Swanst.  (Eng.  Ch.) 
167;  Largen  v.  Bowen,  1  Sch.  & 
Lef.  (Ir.  Ch.)  296.  But  compare 
High  on  Receivers,  See.  837  as  to 
the  latter  point,  holding  that  he 
will  not  be  discharged  on  applica- 
tion of  defendant  after  satisfying 
the  plaintiff's  demand.  This  is  es- 
pecially so  where  the  rights  of 
other  persons  will  be  prejudiced. 
Fay  V.  Erie  &  Kalamazoo  Railroad 
Bank,  Harr.   (Mich.)   194  (1842). 

64.  Beverly   v.   Brooke,  4   Gratt.' 
(Va.)    220    (1847). 

Where  the  parties  fail  to  apply 
for  the  discharge  of  a  receiver,  the 
court  may  act  on  its  own  motion. 
Piatt  V.  Phil.,  etc.,  R.  Co.,  65  Fed. 
872  (1894). 

It  is  the  duty  of  the  party  ap- 
plj'ing  for  receiver  to  ask  for  his 
discharge.  Langdon  v.  Vermont, 
etc.,  R.  Co.,  53  Vt.  228  (1880). 

A  receiver  of  a  corporation  will 
not  be  discharged  pending  his  suit 
in  another  jurisdiction  to  set  aside 
a  sale  of  the  assets.  Denver  City 
Waterworks  Co.  v.  Amer.  Water- 
works Co.,  81  X.  J.  Eq.,  139  (1912). 

65.  Milwaukee,    etc.,    R.    Co.    v. 


RECEIVERS 


829 


charged  thereby,  nor  by  the  abatement  of  the  suit,"*^  but 
his  final  account  must  be  rendered  and  allowed  "^^  and  ap- 
plication for  his  discharge  formally  made  by  petition  "* 
and  notice  thereon  to  all  parties  interested  ^^  and  an  order 
of  court  thereon.'*^  The  application  may  be  made  by  any 
party  in  interest,  or  the  receiver  himself  may  apply  for 
his  own  discharge  when  he  has  completed  his  task.  The 
effect  of  the  final  discharge  of  a  receiver  is  to  terminate 
his  liability  for  all  acts  done  in  his  official  capacity,  and 
no  suits  can  thereafter  be  brought  against  him  to  charge 
the  property  formerly  in  his  hands.'^^ 


Souter,  2  Wall.   (U.  S.)   510,  17  L. 
ed.  900   (1864). 

66.  Pagett  v.  Brooks,  140  Ala. 
257  (1903);  Eobinson  v.  Euprec-ht, 
147  111.  App.  646  (1900);  McCosker 
V.  Brady,  1  Barb.  (N.  Y.)  Ch.  346 
(1846). 

67.  Williamson  v.  Wilson,  1 
Bland.  (Md.)  439  (1827);  Strauss 
V.  Casey  Machine,  etc.,  Co.,  69  N. 
J.  Eq.  19  (1905). 

This  is  so  whether  he  is  dis- 
charged before  or  after  the  ac- 
counting. Simmons  v.  Shelton,  112 
Ala.  284  (1895);  Eobinson  v.  W. 
Va.  Loan  Co.,  90  Ted.  770  (1898). 

68.  Dan.  Ch.  Pr.  (6th  Am.  ed.), 
]).  1765;  Beverly  v.  Brooke,  4  Gratt. 
(Va.)   220   (1847). 

Application  for  discharge  should 
be  made  to  the  court  appointiag 
him.  Daube  v.  Philadelphia,  etc., 
Coal,  etc.,  Co.,  77  Fed.  113  (1896). 

It  may .  be  made  in  vacation. 
Kurd's  111.  Stat.,  Chap.  37,  Sec.  67, 
J.  &  A.  113030;  Walters  v.  Anglo- 
Amer.  Mortg.,  etc.,  Co.,  50  Fed.  317 
(1892). 

69.  Davis  v.  Marlborough,  2 
Swanst.   (Eng.  Ch.)   118. 

70.  Newman  v.  Mills,  Hog.  (Tr. 
Ch.)   291.     If  the  receiver  has  not 


filed  his  final  account,  the  order 
may  direct  him  to  do  so  and  he  will 
be  discharged  on  compliance.  Dan. 
Ch.  Pr.  (6th  Am.  ed.),  p.  1765. 
The  court  should  not  surrender 
custody  of  the  property  and  dis- 
charge the  receiver  until  all  claims 
incurred  by  the  receiver  in  the 
proper  discharge  of  his  duties  have 
been  adjusted  and  provided  for. 
Thornton  v.  Highland  Ave.  &  Belt 
E.   Co.,  94  Ala.  353    (1891). 

71.  Archambeau  v.  Piatt,  173 
Mass.  249,  73  Am.  St.  Eep.  298 
(1899);  Bond  v.  State,  68  Miss. 
648  (1891);  Davis  v.  Duncan,  19 
Fed.  477  (1884);  Farmers  Trust  Co. 
V.  E.  E.,  7  Fed.  537  (1880).  In 
Bond  V.  State  and  Davis  v.  Dun- 
can, the  case  of  Mill  v.  Loeb,  64 
Barb.  (N.  Y.)  454  (1873),  relied  on 
in  High  on  Eeceivers,  Sec.  848,  is 
distinguished,  since  in  that  case,  it 
was  held  merely  that  the  discharge 
of  a  receiver  did  not  bar  a  suit 
against  him  upon  a  personal  liabil- 
ity incurred  during  the  receiver- 
ship. 

A  receiver  cannot  appeal  from 
an  order  of  discharge.  Montpelier 
Corp.  and  Metal  Works  v.  Dilsaver, 
169  111.  App.  279   (1912). 


CHAPTER  XXVIII 
EXCEPTIONS  AND  APPEALS 

§  499.  In  general.  Causes  in  equity  are  brought  before 
the  appellate  court  by  three  methods  of  procedure,  viz.: 
1,  upon  report:  -,  upon  exceptions,  and  3,  upon  appeal 
after  decree  entered  by  the  chancellor  or  justice  presid- 
ing. Jurisdiction  of  the  appellate  court  depends  upon 
statute  and  not  upon  consent  of  parties.  Consequently, 
a  cause  cannot  be  brought  before  it  by  mere  agreement 
of  counsel,  but  only  by  one  of  the  statutoiy  methods  of 
procedure.^ 

§  500.  On  report.  By  statute  in  some  states  the  chan- 
cellor or  justice  hearing  the  case  may  report  questions 
of  law  to  the  appellate  court  for  decision  if  he  deems 
them  doubtful  or  important,-  and  in  some  jurisdictions 

1.  Mabey  v.  Dickens,  31  Ala.  243  tere«l  on  the  pleadings  and  a  mas- 
(1857);  Fleishman  v.  Walker,  91  ter  "s  report,  and  an  appeal  is  taken 
ni.  318  (1S78):  Whittemore  v.  Rus-  and  a  request  is  made  to  the  justice 
sell,  7S  Me.  337  (1886);  Peoples  v.  who  heard  the  case  to  report  it, 
Ault,  117  Md.  631  (1912);  Perkins  the  case  may  be  treated  as  in  the 
v.  Perkins,  173  Mich.  690  (1913).  law   court    on    appeal    and   the    re- 

2.  Maine,  R.  S.,  Chap.  79,  Sec.  port  may  be  regarded  as  a  finding 
25;  Massachusetts,  R.  L.,  Chap.  159,  of  all  the  facts  upon  which  the  de- 
Sec.  29:  Xew  Hampshire.  Pub.  cree  was  founded.  Pratt  v.  Mc- 
Stat.,  Chap.  78,  Sec.  5:  New  Jersey,  Guiness,  173  Mass.  170  (1S9S). 
Stat.  1902,  Sec.  99:  Rhode  Island,  After  a  final  decree  and  appeal 
Gen.  Laws,  Ch.  2S9,  Sec.  36.  therefrom,  a  report  by  the  justice 

In  Massachusetts  a  justice  of  the  to  complete  the  case  for  presenta- 

Superior     Court     may     report     an  tion    of    questions    of    law    under 

equity  case  to  the  Supreme  Judicial  Massachusetts,    R.    L.,    Chap.    159, 

Court  upon  the  pleadings  and  facts  Sec.  23,  should  not  conclude  as  fol- 

found  by  him  without  deciding  the  lows:     "I  now  report  this  case  to 

case.     Nashua  &  L.  R.  Co.  v.  Bos-  the  Supreme  Judicial  Court  for  its 

ton    &    L.    R.    Co.,    169    Mass.    157  consideration     and     determination. 

(1897).      If    a    final    decree    is    en-  If,  Ln  its  opinion,  I  am  right  in  my 

830 


EXCEPTIONS  AND  APPEALS 


831 


if  the  parties  agree  thereto;  ^  and  thereupon  like  pro- 
ceedings are  had  as  upon  appeals  from  final  decree.^ 

§  501.  When  causes  may  properly  be  reported.  Equity 
causes  should  not  be  reported  to  the  appellate  court 
until  the  pleadings  are  sufficiently  perfected  to  enable  the 
appellate  court  to  make  a  final  decision  upon  the  merits.^ 
Furthermore,  a  cause  should  only  be  reported  for  the  de- 
termination of  some  doubtful  question  of  law,  the  deci- 
sion of  which  will  practically  decide  the  case.  It  is  not 
good  practice  to  report  a  cause  directly  to  the  appellate 
court  for  the  determination  of  complicated  questions  of 
both  fact  and  law  upon  conflicting  and  voluminous  evi- 
dence.^    Sometimes  express  provisions  allow  questions 


conclusions  of  law,  the  decree  is  to 
stand;  if,  in  its  opinion,  I  have 
erred,  such  order  or  decree  to  be 
entered  as  said  court  may  direct." 
Such  a  conclusion  is  only  proper  in 
case  of  a  report  of  the  case  to  the 
law  court  without  final  decision  un- 
der E.  L.,  Chap.  159,  Sec.  29.  Hil- 
dreth  v.  Thibodeau,  186  Mass.  83, 
104  Am.  St.  Rep.  560   (1904). 

3.  Maine,  R.  S.,  Chap.  79,  Sec.  25. 
In  Glover  v.  Baker,  76  N.  H.  261 

(1911),  questions  of  law  arising 
upon  defendant's  demurrer  were 
transferred  to  the  Supreme  Court 
without  a  ruling.  The  plaintiff 
moved  that  the  action  be  remanded 
to  the  Superior  Court  on  the  ground 
that  questions  of  law  could  not  be 
considered  in  the  Supreme  Court 
against  the  objection  of  a  party  ex- 
cept upon  exceptions  to  rulings 
made  in  the  Superior  Court.  The 
court  after  an  elaborate  discussion 
of  New  Hampshire  practice  held 
that  it  was  not  necessary  for  the 
presiding  judge  to  decide  questions 
of  law  before  reporting  them  to 
the  Supreme  Court. 

4.  Maine,  R.  S.,  Chap.  79,  Sec.  25; 


Massachusetts    R.    L.,    Chap.    159, 
Sec.  29. 

5  Shaw  V.  Monson  Maine  Slate 
Co.,  96  Me.  41  (1901);  Merrill  v. 
Washburn,  83  Me.  189  (1891).  The 
court  in  the  latter  case  said:  "We 
take  this  occasion  to  repeat,  what 
we  have  said  in  former  opinions, 
that,  under  our  present  system  of 
equity  procedure,  the  law  court  is 
an  appellate  court,  a  court  of  last 
resort.  Parties  desiring  a  speedy 
adjudication  of  a  cause  in  equity 
should  not  present  it  to  the  law 
court,  until  it  is  in  such  shape  that 
the  opinion  of  the  law  court  will 
be  a  final  decision.  The  court  held 
by  a  single  justice  is  now  the 
equity  court  of  original  jurisdic- 
tion, where  the  sufficiency  of  the 
pleadings  can  be  promptly  consid- 
ered, amendments  readily  made, 
and  the  cause  then  speedily  heard 
on  its  merits." 

6.  Hagar  v.  Whitmore,  82  Me. 
248  (1890).  In  this  case  the  court 
said:  "It  is  not  good  practice  to 
report  to  the  law  court  for  original 
consideration,  without  the  aid  of  a 
master  's  report  or  justice  's  opinion. 


832  EQUITY  PRACTICE 

arising  on  interlocntory  decrees  or  orders  to  be  reported 
to  tlie  appellate  court '  and  proceedings  in  the  lower  court 
to  be  stayed  except  such  as  are  necessary  to  preserve 
the  riglits  of  the  j^arties.^ 

§  502.  Exceptions.  So  called  bills  of  exceptions  in 
chancery  practice  are  of  two  kinds  and  serve  distinct 
puiposes:  1st,  as  a  means  of  making  certain  rulings 
with  the  objections  thereto  a  part  of  the  record  on  ap- 
peal which  would  not  otherwise  be  incorporated  therein; 
and  2nd,  as  an  independent  statutory  method  of  trans- 
ferring mlings  of  law  to  the  appellate  court  for  decision 
apart  from  a  regular  chancery  appeal  which  carries  up 
the  whole  record.  In  general  chancery  practice  the 
pleadings,  evidence  (except  where  it  is  taken  orally  in 
open  court),  rulings  and  decrees  are  part  of  the  record 
and  go  up  on  appeal.^  But  where  oral  evidence  is  taken 
either  before  the  court  or  on  issue  to  a  jury  and  objection 
is  made  to  the  competency  of  witnesses  or  to  the  admis- 
sion or  exclusion  of  testimony  or  to  the  judge's  charge  to 
the  jury,  such  objections  and  the  rulings  thereon  do  not 
become  a  part  of  the  record  unless  incorporated  therein 

a  case  in  equity  where  it  becomes  Slater,  211  Mass.  334  (1912).  In- 
necessary  to  sort  out  and  decide  terlocutory  matters  cannot  be 
many  questions  of  fact,  as  well  as  brought  to  the  full  court  except 
some  of  law,  and  to  finally  adjust  upon  report.  Hutchins  v.  Xicker- 
and  compose  all  the  disputes  grow-  son,  212  Mass.  118  (1912). 
ing  out  of  numerous  and  varied  g.  Massachusetts  R.  L.,  Chap, 
commercial  and  maritime  transac-  159^  gp^  07.  g  j  Gen,  Laws  Ch. 
tions  and  in  which  the  testimony,  ^89,  Sec.  36. 

including  a  mass  of  correspondence,  9,  Lente   v.   Clarke,   22   Fla.   515 

accounts    and    vouchers,    protests,  (I886);   Ferris  v.   McClure.  40   111. 

general     average     statements     and  99  (1864) ;  Bell  v.  Gordon,  55  Miss, 

many  other  documents,  consists  of  45   (I877). 

many  hundred  pages. ' '  In  the  absence  of  a  bill  of  excep- 
7.  While  a  final  decree  formally  tions  in  an  equity  case,  the  sub- 
entered  cannot  be  reported,  an  or-  stantial  merits  can  be  considered 
der  for  a  decree  may  be  treated  in  on  appeal  only  as  shown  by  the 
the  nature  of  an  interlocutory  de-  pleadings,  findings  of  fact,  conclu- 
cree  and  may  be  reported  under  E.  sions  of  law  and  decree.  Dalton  v. 
L.,  Chap.  159,  Sec.  27.    Bartlett  v.  Hazelet,  182  Fed.  561   (1910). 


EXCEPTIONS  AND  APPEALS 


833 


by  a  bill  of  exceptions  ^^  signed  and  allowed  by  the  justice 


10.  Young  V.  Omohundro,  69  Md. 
424  (1888);  Swope  v.  Snyder,  209 
Pa.  352  (1904);  Steele  v.  Frierson, 
85  Tenn.  438  (1886);  Fife  v.  Gate, 
84  Vt.  45  (1911). 

In  Illinois  the  evidence  and  rul- 
ings thereon  are  incorporated  in  the 
record  by  a  certificate  of  evidence. 
Flaherty  v.  McCormick,  123  111.  525 
(1888).  In  this  case  the  court  says 
(p.  533),  "There  is  a  diversity  as 
respects  bills  of  exceptions  in  cases 
at  law  and  in  chancery.  Indeed 
taking  the  term  bill  of  exceptions 
in  its  original  and  appropriate 
sense  it  is  altogether  inapplicable 
to  a  proceeding  in  equity  for  it  is 
never  proper  to  take  exceptions  to 
the  rulings  of  the  court  in  a  chan- 
cery case,  as  it  would  be  under  like 
circumstances,  in  a  case  at  law. 
The  reason  of  this  is,  that  all  mo- 
tions and  orders  in  a  chancery 
cause  must  be  entered  of  record, 
and,  on  appeal,  these  motions  and 
orders,  together  with  the  plead- 
ings and  all  the  files  of  the  case, 
constitute  the  record  upon  which 
the  case  is  re-heard.  On  the  hear- 
ing before  the  appellate  tribunal, 
the  question  is  not  so  much  as  to 
whether  the  lower  court  ruled 
properly  upon  this  or  that  ques- 
tion, as  it  is  in  cases  at  law,  but 
whether,  upon  the  whole  record, 
the  decree  is  right.  The  sole  office 
or  function  of  a  certificate  of  evi- 
dence in  chancery  causes,  as  its 
very  name  implies,  is  to  truly  set 
forth  the  evidence  offered,  rejected, 
received  and  considered  on  the 
hearing  and  any  attempt  to  make 
it  subserve  some  other  purpose  is 
without  warrant  of  law.  On  the 
other  hand,  while  a  bill  of  excep- 
tions in  an  action  at  law  usually 
Whitehouse  E.  P.  Vol.  1—53 


performs  the  same  office  yet  its 
chief  function,  as  its  name  implies, 
is  to  preserve  exceptions  to  rulings 
of  the  court  upon  motions,  ques- 
tions of  evidence,  and  the  like  and 
thereby  make  them  a  part  of  the 
record,  which  they  would  otherwise 
not  be." 

In  jury  trials  in  the  chancery 
court  a  bill  of  exceptions  is  re- 
quired to  make  the  evidence  and 
affidavits  introduced  on  the  trial 
a  part  of  the  record  on  appeal. 
James  v.  Brooks,  6  Heisk.  (Tenn.) 
150   (1871). 

Where  a  statute  requires  a  cer- 
tain issue  of  fact  to  be  tried  by  a 
jury,  the  sufficiency  of  the  evidence 
cannot  be  inquired  into  in  the  ap- 
pellate court  unless  a  motion  for  a 
new  trial  is  made  as  in  actions  at 
law  and  exceptions  taken  to  its  re- 
fusal. Tucker  v.  Cole,  169  111.  150 
(1897).  In  such  case  exceptions 
must  be  taken  to  the  rulings  of  the 
court  as  in  actions  at  law.  May- 
ville  V.  French,  246  111.  434  (1910). 
In  Massachusetts  upon  an  appeal 
in  a  suit  in  equity  in  which  the 
evidence  is  reported  to  the  full 
court,  all  questions  regarding  the 
improper  admission  or  rejection  of 
evidence  raised  by  exceptions  taken 
at  the  hearing,  shall  be  subject  to 
revision  by  the  court  in  the  same 
manner  as  if  they  were  containe<l 
in  a  bill  of  exceptions,  ami  the 
report  of  the  evidence  shall  in- 
clude, as  part  thereof,  notes  of  any 
exceptions  to  the  admission  or  re- 
jection of  evidence  and  the  rul- 
ings of  the  judge  in  respect 
thereto,  and  it  shall  not  be  neces- 
sary to  file  any  bill  of  exceptions 
as  to  such  admission  or  rejection  of 
evidence    or   to    suspend   the   entry 


834 


EQUITY  PRACTICE 


and  filed  within  tlie  time  designated  by  statute  or  rule  of 
court. ^^  Such  bills  of  exceptions  were  unknown  to  the 
ancient  chancer}^  practice,^-  but  have  been  made  appli- 
cable to  the  modern  practice  by  statute  ^^  in  several  states 
for  the  purpose  of  bringing  the  above  mentioned  rulings 
before  the  higher  court  on  appeal.  While  in  most  juris- 
dictions bills  of  exceptions  in  chancery  are  used  in  con- 
nection with  an  appeal,  it  is  provided  by  statute  in  a  few 
states  that  questions  of  law  may  be  taken  to  the  appellate 
court  on  bill  of  exceptions  alone  without  carrying  up  the 
whole  record  on  appeal,^ ^  although  an  appeal  may  also 


of  a  decree  by  reason  of  any  such 
exceptions.  Acts  of  1913,  Ch.  716, 
Sec.  5. 

11.  Where  there  is  no  rule  set- 
ting a  time  for  filing  a  bill  of  ex- 
ceptions in  chancery,  it  may  be 
signed  and  filed  at  any  time  be- 
fore the  close  of  the  term  and  the 
filing  is  not  governed  by  the  time 
in  which  an  appeal  must  be  en-  • 
tered.  Patterson  v.  Patterson,  5 
Pickle   (Tenn.)    151    (1890). 

12.  Wittman  v.  Wittman,  110  111. 
App.  201  (1903).  There  were 
formerly  no  bills  of  exceptions  in 
the  Federal  courts  in  chancery 
cases.  Southern  Bldg.,  etc.,  Assn. 
V.  Carey,  117  Fed.  325  (1902).  Ex- 
cept in  the  courts  of  the  territory 
of  Alaska.  Dalton  v.  Hazelet,  182 
Fed.  561  (1910).  But  this  practice 
has  been  modified  by  Rule  46  of 
the  new  Federal  Equity  Rules 
(1913)  which  provides  that  where 
oral  testimony  is  taken  and  evi- 
dence is  offered  and  excluded,  and 
the  party  against  whom  the  ruling 
is  made  excepts  thereto  at  the 
time,  the  court  shall  take  and  re- 
port so  much  thereof  or  make  such 
a  statement  respecting  it  as  will 
clearly  show  the  character  of  the 
evidence,  the  form  in  which  it  was 


offered,    the    objection    made,    the 
ruling,  and  the  exception. 

13.  Maryland  Code  of  1860,  Art. 
5,  Sec.  26,  as  amended;  Mississippi 
Code  of  1906,  Sec.  606;  Tennessee 
Code  of  1896,  See.  4888;  State  v. 
Hawkins,  7  Pickle  (Tenn.)  140 
(1891). 

14.  Maine,  R.  S.,  Chap.  79,  Sec. 
27;  Massachusetts  R.  L.,  Chap. 
173,  Sec.  106;  New  Hampshire  Pub- 
lic-Stat.  1901,  Chap.  78,  Sec.  5. 

Under  such  statutes  bills  of  ex- 
ception only  bring  up  questions  of 
law.  Jackson  v.  Ensign,  199  Mass. 
116   (1908). 

In  Maine,  exceptions  must  be 
claimed  on  the  docket  within  the 
time  allowed  for  appeal,  viz.,  within 
ten  days  after  such  decree  (or  rul- 
ing) is  signed,  entered,  and  filed, 
and  notice  thereof  given  by  such 
clerk  to  the  parties  or  their  coun- 
sel. Maine,  R.  S.,  Chap.  79,  Sees. 
22  and  27.  They  must  be  made  up, 
allowed  and  filed  by  the  first  day 
of  the  next  term  of  the  law  court 
to  be  held  in  that  district  unless 
further  time  is  granted  by  the  court 
or  by  agreement  of  parties.  Maine, 
R.  S.,  Chap.  79,  Sees.  27  and  22. 

In  Massachusetts,  exceptions 
must   be   reduced  to   writing,   filed 


EXCEPTIONS  AND  APPEALS 


835 


be  entered  if  so  desired.  Under  such  statutory  practice 
exceptions  may  be  taken  to  a  final  decree  as  well  as  to 
an  interlocutory  order  or  ruling  of  the  same  justice. ^^ 

§  503.  Exceptions,  how  made  up.  Exceptions  are  pre- 
pared by  the  counsel  raising  the  objection.  They  should 
begin  with  the  title  of  the  cause,  and  then  state  the  na- 
ture of  the  cause,  the  particular  ruling  objected  to  and 
close  with  the  statement, — "To  which  ruling  the  plain- 
tiff (or  defendant)  excepts  and  prays  that  his  exceptions 


with  the  clerk  and  notice  given 
within  twenty  days  after  verdict 
of  jury,  or  within  twenty  days  after 
notice  of  decision  of  the  court. 
E.  L.,  Chap.  173,  Sec.  106. 

In  New  Hampshire,  bills  of  ex- 
ceptions may  be  entered  in  the  Su- 
preme Court  at  any  time.  Public 
Stat.  1901,  Chap.  78,  Sec.  5. 

The  bill  of  exceptions  as  used  in 
the  above  states  is  entered  in  the 
appellate  court,  heard  and  decided 
like  an  appeal.  See  Maine,  E.  S., 
Chap  79,  Sec.  27;  Massachusetts  E. 
L.,  Chap.  173,  Sec.  117. 

In  Massachusetts,  if  exceptions 
are  deemed  by  the  justice  to  be 
frivolous  or  intended  for  delay, 
judgment  may  be  entered  and  exe- 
cution awarded  or  stayed,  upon 
terms,  nothwithstanding  the  allow- 
ance of  the  exceptions.  E.  L.,  Chap. 
173,  Sec.  109. 

In  Maine  in  such  case,  the  excep- 
tions are  transmitted  to  the  chief 
justice,  argued  in  writing  on  both 
sides  within  thirty  days  and  if  the 
decision  of  the  justice  is  adverse  to 
the  party  taking  such  exceptions, 
treble  costs  may  be  allowed  the 
prevailing  party.  E.  S.,  Chap.  79, 
Sec.  37. 

In  Massachusetts,  where  excep- 
tions are  taken  and  allowed  to  rul- 
ings of  law  it  is  irregular  to  enter 


a  final  decree  while  the  exceptions 
are  pending.  It  is  better  practice 
in  such  case  to  raise  the  questions 
of  law  by  appeal  rather  than  by 
exceptions.  McCusker  v.  Geiger, 
195  Mass.  46  (1907). 

In  Tennessee,  the  judge  may  al- 
low an  extension  of  time  for  filing 
exceptions  beyond  the  end  of  the 
term  but  under  the  statute  they 
must  not  only  be  signed  within  the 
extended  period  but  actually  filed 
by  the  clerk.  Wright  v.  Eedd 
Bros.,  106  Tenn.  719  (1901). 

15.  Emery  v.  Bradley,  88  Me.  357 
(1896). 

An  exception  to  a  final  decree 
may  often  be  preferable  to  a  gen- 
eral appeal.  The  latter  opens  up 
the  whole  case  for  a  rehearing  on 
the  law  and  facts,  and  requires  the 
transmission  to  the  law  court  of 
copies  of  all  the  pleadings,  orders 
and  evidence.  The  former  presents 
solely  the  question  of  law  for  re- 
hearing and  requires  usually  but  a 
very  small  part  of  the  record  to  be 
transmitted  to  the  law  court. 
Emery  v.  Bradley,  supra.  Excep- 
tions are  allowable  also  merely  to  a 
part  of  the  final  decree.     Ihid. 

Where  a  demurrer  is  sustained  to 
a  bill,  it  is  not  necessary  to  both 
except  and  appeal.  Turner  v.  Hud- 
son, 105  Me.  476  (1909). 


836 


EQUITY  PRACTICE 


may  be  allowed."  The  exceptions  should  be  dated  and 
signed  by  eounsel.^'^  The  exceptions  should  then  be  sub- 
mitted to  the  opposing  counsel  for  examination  and  pre- 
sented to  the  chancellor  or  presiding  justice  for  his  al- 
lo^wance,  and  if  allowed,  the  words  "Exceptions  allowed" 
are  written  thereimder  and  signed  by  such  chancellor  or 
justice.  The  exception  should  then  be  filed  with  the  clerk. 
§  504.  Exceptions,  when  heard.  Wlien  the  exceptions 
have  been  made  up.  allowed  aud  filed,  it  is  not  the  prac- 
tice in  states  where  the  bill  of  exceptions  acts  as  a  method 
of  review  to  suspend  the  progress  of  the  cause  in  order 
to  allow  such  exceptions  to  be  taken  to  the  appellate 
court  for  hearing  and  determination.  The  exceptions  to 
an  interlocutory  ruling  or  decree  should  not  be  brought 
to  the  appellate  court  until  after  final  decree  has  been  en- 
tered, except  in  such  cases  as  will  not  admit  of  delay,^' 
and  when  exceptions  are  thus  prematurely  brought  to 
the  upper  court,  they  will  be  dismissed  from  the  docket.^® 


16.  See  form  in  the  third  volume,- 
post. 

17.  For  instance  where  excep- 
tions have  been  heard  at  an  earlier 
stage  upon  this  ground,  see  Stevens 
V.  Shaw.  77  Me.  566  (1SS5) :  Spauld- 
ing  V.  Farwell.  62  Me.  319  (1874). 

18.  Bath  V.  Palmer.  90  Me.  467 
(1S97^:  Maine  Benefit  Ass.  v.  Ham- 
ilton, SO  Me.  99  (1888).  In  the  lat- 
ter case,  the  eourt  said:  "The 
decree  entered  below  was  interlocu- 
tory only  and  did  not  finally  dis- 
pose of  the  cause,  but  left  it  for 
further  hearing  upon  answer  and 
proof  if  the  parties  saw  fit  to  fur- 
ther litigate  the  same.  By  R.  S. 
(1883),  Ch.  77,  Sec.  22  (now  R.  S. 
1903.  Ch.  79.  Sec.  24 ^,  appeals  from 
an  interlocutory  decree  are  allowed 
within  the  time  fixed  for  appeals 
from  final  decrees:  but  the  statute 
says,  'Such  appeal  shall  not  sus- 
Dend  any  proceeding  under  such  de- 


cree or  order,  or  in  the  cause,  and 
shall  not  be  taken  to  the  law  court 
until  after  final  decree.'  The 
docket  entries  show  that  an  appeal 
was  taken  from  the  decree  passed 
in  this  cause.  Sec.  25  (Now  Sec. 
27)  allows  exceptions  to  be  taken 
to  rulings  in  matters  of  law  dur- 
ing the  progress  of  the  cause  within 
the  time  allowed  for  appeal,  and 
says  *  In  all  other  respects  such  ex- 
ceptions shall  be  taken,  entered 
in  the  law  court  and  there  heard 
and  decided  like  appeals.  .  .  . 
The  allowance  and  hearing  of  ex- 
ceptions shall  not  suspend  the 
other  proceeding  in  the  cause.'  The 
rule  laid  down  in  Stevens  v.  Shaw. 
77  Me.  566,  is,  that  it  is  irregular 
to  hear  exceptions  in  an  equity 
cause  before  final  hearing,  and 
that  such  hearing  should  not  be  al- 
lowed unless  the  question  does  not 
admit  of  delav  until  then.    In  this 


EXCEPTIONS  AND  APPEALS 


837 


§  505.  Who  may  appeal.  Only  parties  to  a  decree  can 
appeal.'-'  If  a  party  to  the  suit  is  in  no  manner  affected 
by  what  is  decreed  lie  cannot  be  said  to  ])e  a  party  to  the 
decree.-"  It  is  sometimes  said  that  the  appellant  must 
be  aggrieved  by  the  decree  complained  of.^^    But  a  party 


cause,  the  respondents  can  as  well 
present  their  exceptions  at  the  final 
hearing,  when  their  appeal  taken 
to  the  decree  already  jjassed  must 
be  heard,  as  before.  The  question 
raised  is  in  the  nature  of  abate- 
ment to  an,  action  at  law,  which  if 
decided  at  nisi  priiis  adversely  to 
the  deffendant  is  never  considered 
by  the  law  court  before  the  trial  is 
had.  E.  S.  (]883),  Chap.  77,  Sec. 
52  (now  E.  S.  1903,  Ch.  79,  Sec. 
09).  Moreover,  upon  the  merits, 
the  question  now  raised  may  be- 
come immaterial. ' ' 

19.  Weller  v.  Eensford,  164  Ala. 
312  (1910);  McKim  v.  Mason,  3 
Md.  Ch,  186  (1853);  Tennessee 
Code,  Sec.  3159;  Railroad  Co.  v. 
Glenn,  102  Va.  529  (1904);  Wade 
V.  Carney,  68  W.  Va.  756   (1911). 

Or  the  legal  representatives  of 
such  parties.  Steele  v.  White,  2 
Paige  (N.  Y.)  478  (1831);  O'Con- 
nor V.  O'Connor,  45  W.  Va.  354 
(1898);  U.  S.  Compiled  Stat.  1901, 
p.  513. 

The  statutes  generally  provide  in 
express  terms  who  shall  have  the 
right  of  appeal. 

The  stockholders  of  a  corporation 
do  not  represent  the  latter  for  the 
purpose  of  appeal.  Ex  parte  Cut- 
ting, 94  U.  S.  14,  22  (1876).  The 
president  of  a  board  of  trade  may 
appeal  from  a  decree  in  the  suit 
in  which  he  was  a  party  which  is 
adverse  to  the  validity  of  a  rule 
of  the  board.  Pacaud  v.  Waite, 
218  111.  138,  2  L.  E.  A.  (N.  S.)  672 


(1905).  An  amicus  curiae  has  no 
right  to  appeal.  Hamlin  v.  Meet- 
ing House,  103  Me.  343  (1908); 
Martin  v.  Tapley,  119  Mass.  116 
(1875);  In  re  Columbia  R.  Co.,  101 
Fed.  965. 

A  guardian  ad  litem  may  appeal 
in  behalf  of  an  infant  when  nec- 
essary to  protect  his  interests. 
Thomas  v.  Safe  Deposit  Co.,  73 
Md.  451;  Loftis  v.  Loftis,  94  Tenn. 
232   (1894). 

The  next  friend  of  an  infant 
may  appeal.  Cooke  v.  Adams,  27 
Ala.  294  (1855);  Givens  v.  Clem, 
107  Va.  435   (1907). 

20.  Farmers '  Trust  Co.  v.  Water- 
man, 106  U.  S.  265  (1882). 

The  appellant  must  have  an  in- 
terest in  the  subject  matter  of  the 
suit.  Anderson  v.  Stegar,  173  111. 
112  (1898);  Preston  v.  Poe,  116 
Md.  1  (1911);  Glenn  v.  Eeed,  74 
Md.  238  (1891);  Gorman  v.  Patrick 
Hirsch  Co.,  138  N.  W.  1079  (Mich. 
1912);  Lawrence's  App.,  67  Pa.  87 
(1870);  Givens  v.  Clem,  107  Va. 
435   (1907). 

An  interest  acquired  after  the 
litigation  is  not  sufficient.  Light- 
ner  v.  Prentis,  158  Mich.  13  (1909). 

A  party  against  whom  a  judg- 
ment or  decree  for  costs  has  been 
taken  has  such  an  interest  in  the 
suit  as  entitles  him  to  appeal. 
McCave  v.  Farnsworth,  27  Mich. 
52   (1873). 

21.  Illinois.  Eoby  v.  Commis- 
sioners, 215  111.  200,  202  (1905). 


838 


EQUITY  PRACTICE 


aggrieved  by  only  part  of  a  decree  cannot  appeal  from 
other  parts  of  a  decree  which  do  not  affect  his  interest. -- 
So  a  part}"  who  has  parted  with  all  his  interest  in  the  sub- 
ject matter  of  the  snit  during  the  progress  of  the  cause, 
cannot  appeal  from  the  decree  affecting  such  interest.-^ 
So  an  intervening  petitioner  for  leave  to  become  a  party, 
whose  petition  has  been  denied,  will  not  be  allowed  to 
appeal,-^  But  when  such  person  has  been  allowed  to 
intervene  in  order  to  protect  his  interest,  he  will  be  al- 
lowed to  appeal  from  a  decree  affecting  that  interest. 
Thus  purchasers  at  a  foreclosure  sale  become  quasi  par- 
ties possessing  such  an  interest  as  entitles  then!  to  inter- 
vene and  appeal.-^  So  a  receiver  may  appeal  from  de- 
crees against  his  interest,  as  in  matters  concerning  his 


Massachusetts.  E.  L.  1902,  Chap. 
159,  Sec.  19  as  amended. 

Michigan  Acts  of  1909,  No.  299, 
Sec.  1,  How.  Ann.  St.  (2d  ed.) 
12071. 

Virginia.  Eowland  v.  Eowland. 
104  Va.  673  (1905). 

West  Virginia.  Whyll  v.  Jane 
Lew  Coal  &  Coke  Co.,  67  W.  Va. 
651    (1910). 

In  New  Jersey  the  statute  reads 
' '  all  persons  aggrieved. ' '  Laws  of 
1902,  Sec.  114  as  amended.  In 
Pennsylvania,  ' '  any  person  or  body 
corporate  aggrieved."  Act  of  21 
Apr.  1896.  In  Virginia,  "Any 
party  who  thinks  himself  ag- 
grieved."  Code,  Sec.  3454. 

A  "party  aggrieved"  is  one 
whose  pecuniary  interest  is  directly 
affected  by  the  decree  or  whose 
right  of  property  may  be  estab- 
lished or  divested  thereby.  Swaek- 
hamer  v.  Kline's  Admr.,  25  X.  J. 
Eq.  503  (1874).  A  party  may  be 
'  *  aggrieved  "  by  a  decree  dismiss- 
ing a  bill  even  though  a  defendant 
in  form.  Atkinson,  Trustee  v.  Mc- 
Cormick,     Trustee,     76     Va.     791 


(1S82).  A  purchaser  pendente  lite 
is  not  "a  party  aggrieved"  who 
may  appeal.  State  of  Florida  v. 
Florida  Central  E.  Co.,  15  Fla.  690 
(1875). 

An  appellant  cannot  have  a  de- 
cree reversed  for  errors  which  do 
not  affect  his  interest.  Shobe  v. 
Luff,  66  111.  App.  414  (1896);  Buhl 
&  Co.  V.  Xestor,  52  W.  Va.  610 
(1903).  Or  when  the  decision  is  in 
his  favor.  Coleman  v.  Butt,  130 
Ala.  266  (1901). 

It  is  not  necessary  that  a  party 
be  entirely  defeated  that  he  may 
have  the  right  of  appeal.  Gray  v. 
Jones,  178  111.  169   (1899). 

22.  Hone  v.  Van  Schaick,  7  Paige 
(X.  Y.)  221  (1838). 

23.  Card  v.  Bird,  10  Paige  (X. 
Y.)   426    (1843). 

24.  Ex  parte  Cockcroft,  104  U.  S. 
578,  26  L.  ed.  856  (1881). 

25.  Williams  v.  Morgan,  111  U. 
S.  6S4,  28  L.  ed.  559  (1884).  See 
also  Bichey  v.  Guild,  99  111.  App. 
451  (1902),  and  Illinois  Steel  Co. 
V.  Bamsey,  176  Fed.  853   (1910). 


EXCEPTIONS  AND  APPEALS 


839 


compensation.-^^  On  an  appeal  by  one  party,  errors  preju- 
dicial to  the  other  party  may  be  corrected  without  a 
cross  appeal.-'^ 

§506.  In  what  cases  allowed.  No  appeal  will  be  al- 
lowed from  a  consent  decree;  -^  nor  by  a  party  accepting 
the  benefit  of  a  decree ;  ^^  nor  by  a  defendant  after  decree 
upon  default  at  the  hearing ;  ^'^  nor  from  a  decree  upon 


26.  Hinckley  v.  E.  Co.,  94  U.  S. 
467,  24  L.  ed.  166  (1876). 

27.  Ocala,  etc.,  Works  v.  Lester, 
49  Fla.  347  (1905);  Galbreath  v. 
Galbreath,  64  S.  W.  361  (Tenn. 
1910).  But  see,  contra,  Grifiila  v. 
V^ieksburg  Waterworks  Co.,  88 
Miss.  371  (1906). 

Where  a  decree  is  severable  and 
one  party  only  appeals,  the  rights 
of  the  other  cannot  be  considered 
thereon.  Gloss  v.  Woodard,  202  111. 
480  (1903);  Tenerstein  v.  Eiehter, 
154  Mich.  312  (1908).  See  also  So. 
Railway  Co.  v.  Glenn's  Admr.,  102 
Va.  529   (1904). 

28.  Illinois.  Crow  v.  Harrison, 
248  HI.  462   (1911). 

Massachusetts.  Winchester  v. 
Winchester,  121  Mass.   127   (1876). 

Michigan.  Cameron  v.  Smith,  171 
Mich.  333  (1912). 

Pennsylvania.  Mentz  v.  Brock, 
193  Pa.   294   (1899). 

Virginia.  Darrough  v.  Black- 
ford,  84  Va.   509   (1888). 

United  States.  Pacific  R.  R.  v. 
Ketehum,  101  U.  S.  289,  25  L.  ed. 
932  (1879). 

In  some  jurisdictions  an  agree- 
ment not  to  appeal  based  on  valid 
consideration  will  be  enforced  in 
the  appellate  court  by  a  dismissal 
of  an  appeal  entered  in  violation  of 
such  agreement.  Mackey,  Execu- 
tor, V.  Daniel.  59  Md.  484  (1882); 
Cole  V.  Thayer,  25  Mich.  212 
(1872);  Commonwealth  v.  Johnson, 


6  Pa.  136  (1847).     Contra,  Fahs  v. 
Darling,  82  111.  142   (1876). 

29.  Alabama.  Garner  v.  Pre- 
with,  32  Ala.  13   (1858). 

Illinois.  Shaeflfer  v.  Ardery,  238 
111.  557  (1909);  Trapp  v.  Off,  194 
111.  281  (1902);  Holt  v.  Rees,  46 
111.  141   (1867). 

Maine.  Bank  v.  Herrick,  100  Me. 
494  (1905). 

Mississippi.  Parsons  v.  Ruther- 
ford, 84  Miss.  70  (1904). 

New  Jersey.  Krauss  v.  Krauss, 
74  N.  J.  Eq.  417,  305    (1908). 

Virginia.  Carpenter  v.  Mfg.  Co., 
112  Va.  88,  91  (1911). 

West  Virginia.  McKain  v.  Mul- 
len, 65  W.  Va.  558  (1908). 

Where,  however,  he  is  absolutely 
entitled  to  the  benefit  received 
from  a  decree  and  a  reversal  would 
not  affect  his  right  to  it,  an  ac- 
ceptance of  the  benefit  will  not 
waive  his  right  to  appeal.  Morriss 
V.  Garland,  78  Va.  215  (1883);  Gay 
V.  Householder,  71  W.  Va.  277 
(1912);  Embry  v.  Palmer,  107  U. 
S.  8   (1882). 

30.  Stubbs  V.  Dunsay,  10  Ves. 
(Eug.  Ch.)  30;  Ringgold's  Case,  1 
Bland  (Md.)  1  (1824);  Bldg.,  etc., 
Co.  V.  Lord,  66  N.  J.  Eq.  344 
(1903);  Townsend  v.  Smith,  12  N. 
>T.  Eq.  350  (1858);  Franklin  v.  Os- 
good, 14  .Johns.  (N.  Y.)  527  (1817). 
But  where  the  default  was  occa- 
sioned through  fraud,  accident  or 
mistake,     the     remedy,     it     would 


840 


EQUITY  PRACTICE 


mere  matters  of  diseretion,^^  as  in  the  case  of  granting 
or  refusing  costs. ^-  But  although  the  granting  of  an 
issue  to  the  jury  is  discretionary  in  some  states,^^  yet  it 
has  been  held  that  an  appeal  will  lie  from  the  refusal  of 
the  chancellor  or  single  justice  to  order  an  issue  to  be 
framed  for  a  jury.^^ 

§  507.  Appeals  from  final  decrees — When  and  how 
taken.  The  most  common  method  of  obtaining  a  review 
of  the  decision  of  the  chancellor  or  a  single  justice  is  by 
an  appeal  entered  in  the  court  where  the  cause  is  pend- 
ing.^ An  appeal  from  a  final  decree  must  be  taken  within 

seem,  should  be  by  petition  for  re- 
view. 

In  Virginia  and  West  Virginia, 
application  most  be  made  to  the 
judge  who  made  the  decree  by  de- 
fault for  the  correction  of  the  same 
before  an  appeal  will  be  allowed. 
Davis  V.  Corn.  16  Grattan  (Va.) 
134  (1861):  Baker  v.  Mining  Co.,  6 
W.  Va.  196  (1S73).  CoHira,  Lybass 
V.  Ft.  Myers,  56  Fla.  S17  (1908). 

In  some  states  decrees  pro  con- 
fesiso  may  be  reviewed  on  appeals 
from  final  decrees.  Barley  v.  Jones, 
107  Md.  405  (1908).  See  Chap.  IX 
"Pro  Confesso."  Sees.  194  to  197, 
ante.  pp.  370  et  seq.,  in  regard  to 
opening  decrees  pro  confesso. 

31-  Stewart  v.  Forbes.  1  Mae.  i: 
Gor.  (Eng.  Ch.)  137:  Nat.  Bank  v. 
Sprague,  21  X.  J.  Eq.  45S  (1869): 
Merriam  v.  Barton.  14  Vt.  501 
(1842).  So  the  granting  of  a  tem- 
porary injunction  is  a  matter  of 
discretion  from  which  an  appeal 
will  not  be  allowed  except  in  cases 
of  abuse.  See  Chap.  XXVI.  "In- 
junctions." Sec.  454,  ante,  p.  734. 
So  also  of  the  appointment  of  a  re- 
ceiver during  the  suit.  See  Chap. 
XX  VI  I.  "Receivers,"  Sees.  475 
and  476.  ante.  pp.  774.  775.  Or  the 
granting  of  a  petition  for  a  rehear- 


ing. Steines  v.  Franklin  County,  14 
WalL  15,  20  L.  ed.  S46  (1S71/: 
Bead  v.  Patterson,  44  X.  J.  Eq.  211. 
21S  (ISSS).  Or  a  petition  to  inter- 
vene. Ex  parte  Cutting,  94  U.  S. 
14,  24  L.  ed.  49  (1876). 

32.  See  Chap.  XXIX,  "Costs.' 
Sec.  521,  post,  p.  867. 

33.  See  Chap.  XXI,  Sec.  377, 
ante,  p.  616. 

34.  Merchants  Xat.  Bank  v. 
Moulton,  143  Mass.  543  (1SS7': 
Bpooks  v.  Tarbell,  103  Mass.  496 
(1870).  See  Chap.  XXI,  Sec.  377. 
ante,  p.  616. 

35.  Alabama.  Code  of  1907,  Sec. 
2S6S. 

Delaware.  Laws  of  Delaware, 
Chap.  124.  Sec.  3. 

Florida.  Gen.  Stats,  of  1906. 
Seo.  1907. 

Illinois.  J.  &  A.  T8629:  Kurd's 
Stats..  1912,  Chap.  110.  Sec.  92. 

Maine.    R.  S.,  Chap.  79,  See.  22. 

Maryland.  Code  of  1904,  Art.  5, 
Sec.  32. 

Massachusetts.  E.  L.,  Chap.  159, 
See.  19,  as  amended. 

Michigan.  Acts  of  1909,  No.  299. 
Sec.  2:  How.  Ann.  St..  (2nd  ed.). 
Sec.  12072. 

MiSSissippL  Code  of  1906,  Sees. 
S3  et  seq. 


EXCEPTIONS  AND  APPEALS 


841 


a  certain  time  after  the  decree  appealed  from  has  been 


New  Jersey.  Pub.  Laws  of  1902, 
Chap.  114,  as  amended. 

Pennsylvania.  Act  of  21st  of 
April,  1847,  Sec.  3. 

Rhode  Island.  Gen.  Laws  of 
1909,  Sec.   25. 

Tennessee.  Code  of  1896,  Sec. 
4898. 

Vermont.  Pub.  Stats,  of  1906, 
Sec.  1307. 

United  States.  R.  S.,  Sec.  1008; 
U.  S.  Comp.  Stat.  1901,  p.  715; 
Act  of  March  3,  1891,  Ch.  517,  Sees. 
6,  11;  26  Stat.  L.  828,  829. 

In  Virginia  and  West  Virginia 
the  appeal  is  granted  by  the  appel- 
late court.  Virginia  Code  of  1904, 
Sec.  3455;  West  Virginia  Code  of 
1906,  Sec.  4040. 

In  Illinois  the  decrees  of  the  Ap- 
pellate Court  may  be  reviewed  by 
the  Supreme  Court  in  the  following 
manner  where  an  appeal  is  not  spe- 
cifically required  by  the  constitu- 
tion: (1)  In  case  the  majority  of 
the  judges  of  the  Appellate  Court 
or  any  branch  thereof  shall  be  of 
opinion  that  a  case  (regardless  of 
the  amount  involved)  decided  by 
them  involves  a  question  of  such 
importance,  either  on  account  of 
principal  or  collateral  interest,  that 
it  should  be  passed  upon  by  the 
Supreme  Court,  they  may  in  such 
cases  grant  appeals  to  the  Su- 
preme Court  on  petition  of  parties 
to  the  cause,  in  which  case  the  said 
Appellate  Court  shall  certify  to  the 
Supreme  Court  the  grounds  of 
granting  said  appeal.  (2)  In  any 
such  case  as  is  hereinbefore  made 
final  in  the  saiil  Appellate  Courts, 
it  shall  be  competent  for  the  Su- 
preme Court  to  require  by  certio- 
rari or  otherwise,  any  such  case  to 
be  certified  to  the  Supreme   Court 


for  its  review  and  determination 
with  the  same  power  and  authority 
in  the  case  and  with  like  effect  as 
if  it  had  been  carried  by  appeal  or 
w^rit  of  error  to  the  Supreme  Court, 
provided  that  the  application  for 
certiorari  is  made  on  or  before  a 
certain  time  limit  in  the  statute. 
J.  &  A.  118658;  Kurd's  Stat.  Chap. 

110,  Sec.  121.  Sec.  122  of  the  same 
chapter,  J.  &  A.  H  8659,  providing 
that  on  appeal  or  certiorari  the  Su- 
preme Court  cannot  review  the  de- 
cision of  the  Appellate  Court  on 
questions  of  fact,  does  not  apply  to 
chancery  cases.    Fox  v.  Simon,  251 

111.  316   (1911). 

The  Appellate  Court  should  not 
grant  a  certificate  of  importance  to 
the  Supreme  Court  where  they  have 
made  a  finding  of  facts  different 
from  the  lower  court  which  find- 
ing would  bind  the  Supreme  Court 
on  appeal.  Sparta  Gas  &  Electric 
Co.  V.  Illinois  Southern  Ry.  Co.,  247 
111.  346  (1910). 

The  jurisdiction  of  the  Supreme 
Court  to  hear  an  appeal  from  the 
Circuit  Court  must  be  shown  from 
the  record  and  not  merely  from  the 
statement  of  counsel  in  brief  and 
argument.  People  v.  Cannon,  236 
111.  179  (1908). 

There  can  be  no  direct  appeal  to 
the  Supreme  Court  from  the  Circuit 
Court  in  chancery  cases  without 
appealing  first  to  the  Appellate 
Court.  Young  v.  Stearns,  91  Til. 
221   (1878). 

In  Tennessee  there  are  four 
methods  of  correcting  errors  in 
equity  suits.  (1)  By  writ  of  error 
coram  nobi.t.  (2)  Appeal.  (3)  Ap- 
peal in  the  nature  of  a  writ  of 
error.  (4)  Writ  of  error.  Code  of 
1896,   Sec.   4834.     A   writ   of   error 


842 


EQUITY  PRACTICE 


entered, ^"^    The  method  of  taking  an  appeal  is  in  some 


coram  nobis  must  be  presented  with- 
in one  year  from  rendition  of  judg- 
ment and  ten  days '  notice  must  be 
given  prior  to  the  term  of  court  to 
which  the  writ  is  returnable.  Sees. 
4S39,  4841.  The  relief  granted  in 
this  writ  is  confined  to  errors  of 
fact  occurring  in  proceedings  in 
which  the  per:?on  seeking  relief  has 
had  no  notice  or  which  he  was  pre- 
vented by  disability  from  showing 
or  correcting  or  in  which  he  was 
prevented  from  making  defense  by 
surprise,  accident,  mistake  or 
fraud  without  fault  on  his  part. 
Sec.  4844.  When  an  appeal  in  the 
nature  of  a  writ  of  error  is  taken, 
the  bond  and  proceedings  are  the 
same  as  on  appeal.  Sec.  4910.  Un- 
der this  section  an  appeal  in  the 
nature  of  a  writ  of  error  lies  from 
a  final  judgment  to  correct  errors 
of  law  appearing  upon  the  record 
either  final  or  interlocutory.  A 
writ  of  error  lies  in  all  cases  where 
an  appeal  in  the  nature  of  a  writ  of 
error  would  have  lain.  Sec.  4911. 
Application  if  made  to  the  clerk  of 
the  appellate  court  must  be  within 
one  year  after  the  decree.  Sec. 
4916.  If  to  the  appellate  court  or 
a  judge  thereof  application  must  be 
within  two  years  after  the  decree. 
The  bond  and  proceedings  in  the 
appellate  court  in  application  on 
writs  of  error  are  the  same  as  those 
on  appeal.     Sec.  4S20. 

Under  Tennessee  Acts  of  1903, 
Chap.  24S.  as  amended  by  Acts  of 
1905,  Chap.  427.  a  final  decree  rend- 
ered by  consent  at  chambers  is  re- 
viewable on  writ  of  error.  Bau- 
hard  v.  Truluck,  125  Tenn.  120 
(1911). 

In  Tennessee  there  are  two  ap- 
pellate  courts,   the   Supreme   Court 


and  the  Court  of  Civil  Appeals.  In 
chancery  cases  the  appeal  should  be 
taken  to  the  Supreme  Court  if  the 
amount  involved  exclusive  of  costs 
exceeds  one  thousand  dollars,  or  if 
the  constitutionality  of  a  statute 
of  the  state  or  contested  elections 
for  office,  or  state  revenue  is  in- 
volved, or  in  ejectment  suits.  Oth- 
erwise the  appeal  should  be  taken 
to  the  Court  of  Civil  Appeals. 

The  Court  of  Civil  Appeals  may 
certify  any  case  to  the  Supreme 
Court  on  its  own  motion  for  deci- 
sion. And  any  party  dissatisfied 
with  a  final  decree  of  the  Court  of 
Civil  Appeals  may  apply  for  a  writ 
of  certiorari  from  the  Supreme 
Court  or  one  of  its  judges  which 
may  be  granted  within  ninety  days 
of  final  decree  of  Court  of  Civil 
Appeals. 

36.  Alabama.  Code  of  1907,  Sec. 
2S6S  (sis  months). 

Delaware.  Laws  of  Delaware, 
Chap.  124,  Sec.  3  (two  years). 

Florida.  Gen.  Stats,  of  1906, 
Sec.  1907  (six  months). 

Illinois.  .J.  &  A.  •"  8629,  Hurd  's 
Stats,  of  1912,  Chap.  110,  Sec.  92 
(by  filing  bond  within  such  time 
not  less  than  twenty  days  as  shall 
be  limited  by  the  court). 

Maine.  R.  S.,  Chap.  79,  Sec.  22 
(ten  days). 

Maryland.  Code  of  1904,  Art.  5, 
Sec.  32    (two  months). 

Massachusetts.  R.  L.,  Chap.  159, 
Sec.  19  as  amended  (twenty  days). 

Michigan.  Acts  of  1909,  No.  299, 
Sec.  2:  How.  Ann.  St.  (2d  ed.)  12072 
(forty  days  after  entry  of  decree 
or  where  case  heard  on  proofs  and 
pleadings  in  open  court  or  before 
circuit    court    commissioner   or   by 


EXCEPTIONS  AND  APPEALS 


843 


states  by  entiy  on  the  docket; ''"  in  others  by  filing  a  peti- 
tion or  claim  in  writing  or  assignment  of  causes  of  ap- 


(leposition  within  forty  days  after 
case  settled). 

New  Jersey.  Public  Laws  of 
1902,  Chap.  114,  as  amended  (one 
year  except  where  lis  pendens  has 
been  filed  in  the  suit  or  title  to 
land  is  concerned,  in  which  cases 
the  limit  is  three  months). 

Pennsylvania.  Act  of  21st  of 
April,  1847,  Sec.  3  (six  calendar 
months). 

Rhode  Island.  Gen.  Laws  of 
1909,  Sec.  25   (thirty  days). 

Tennessee.  Code  of  1896,  Sec. 
4898  (thirty  days  if  court  holds  so 
long,  otherwise  before  adjournment 
of  court). 

Vermont.  Pub.  Stat,  of  1906, 
Sec.  1307  (at  the  term  which  de- 
cree is  made). 

Virginia.  Code  of  1904,  Sec. 
3455  (no  appeal  from  final  decree 
rendered  more  than  one  year  before 
petition  is  presented). 

West  Virginia.  Code  of  1906, 
Sec.  4040  (one  year). 

United  States.  E.  S.,  Sec.  1008, 
U.  S.  Comp.  Stat.  1901,  p.  715.  (Ap- 
peals to  Supreme  Court  from  dis- 
trict courts  and  from  state  courts 
within  two  years.)  Act  of  March  3, 
1891,  Chap.  517,  Sec.  6,  26  Stat.  L. 
828.  (Appeals  from  circuit  courts 
of  appeals  to  Supreme  Court  within 
one  year.)  Act  of  March  3,  1891, 
Chap.  517,  Sec.  11,  26  Stat.  L.  829. 
(Appeals  from  district  courts  to 
circuit  courts  of  appeals  within  six 
months.) 

Statutes  limiting  the  time  for 
appeals  are  both  mandatory  and 
jurisdictional  and  must  be  strictly 


complied  with.    Turner  v.  Simmons, 
99  Miss.  28  (1911). 

In  Florida  an  appeal  may  be 
taken  after  it  is  signed  by  the 
judge  and  before  it  is  recorded. 
Dees  V.  Cook,  58  Fla.  420  (1909). 

The  mode  but  not  the  time  of 
taking  an  appeal  may  be  waived. 
Wynn  v.  Tallapoosa  County  Bank, 
168  Ala.  469   (1910). 

It  is  not  the  policy  of  the  courts 
to  dismiss  appeals  for  more  formal 
defects.  Wynn  v.  Tallapoosa 
County  Bank,  supra;  Murphy  v. 
Fairweather,  77  S.  E.  231  (W.  Va. 
1913). 

Failure  to  serve  notice  of  per- 
fecting an  appeal  is  waived  by 
accepting  copies  of  the  record  and 
of  appellant 's  brief.  Lum  v.  Fair- 
banks, 155  Mich.  23   (1908). 

Filing  claim  of  appeal  and  appeal 
bond  after  decree  filed  but  before 
notice  thereof  is  not  premature. 
Stockwell  v.  Smith,  172  Mich.  166 
(1912).  Nor  is  it  premature  to  file 
the  claim  of  appeal  before  the  fil- 
ing of  the  settled  case.  Baldwin  v. 
Escanaba  Liquor  Dealers  Ass'n, 
162  Mich.  703   (1910). 

In  Virginia  an  appeal  from  a  de- 
cree dismissing  a  bill  of  review 
must  be  taken  within  six  months 
after  the  dismissal  of  the  bill  of 
review.  Adams  v.  Booker,  114  Va. 
796  (1913).  And  in  determining 
the  time  within  which  an  appeal 
must  be  perfected,  the  time  be- 
tween the  presentation  of  the  peti- 
tion for  appeal  and  the  date  of  the 
order  granting  the  appeal  must  be 
excluded.     Ihid. 

37.  Florida,  Gen.  Stat.  1906,  Sec. 
1911;   Maine,  E.  S.,  Chap.  79,  Sec. 


844 


EQUITY  PRACTICE 


peal  in  the  office  of  tlie  clerk."''  In  a  few  states  an  appeal 
is  not  a  matter  of  right,  but  a  petition  must  be  presented 
to  a  justice  of  the  appellate  court  for  its  allowance.^^ 


22;  Maryland,  Code  of  1904,  Art. 
5,  Sec.  32;  Eq.  Rule  1;  Massachu- 
setts, K.  L.,  Chap.  159,  Sec.  19  as 
amended. 

Under  the  above  provision  of  the 
Florida  statutes  the  proper  method 
of  giving  notice  to  the  parties  of 
an  appeal  is  by  recording  an  entry 
of  appeal  in  the  chancer}'  order 
book.  The  appellate  court  cannot 
procure  such  notice  through  a  sum- 
mons or  other  writ  issued  by  it. 
Whitted  V.  Abbe,  54  Fla.  669 
(1907). 

38.  Alabama.  Supreme  Court 
Rule  1  (Appellant  must  write  out 
on  the  record  the  errors  which  he 
believes  to  exist  in  the  decree  from 
which  he  appeals  and  appellee  must 
join  issue). 

Delaware.  Laws  of  Delaware, 
Chap.  124,  Sec.  3  (petition  or  as- 
signment of  causes  of  appeal  and 
certified  copy  of  the  record). 

Dlichigan.  Acts  of  1909,  Xo.  299, 
Sec.  2;  How.  Ann.  St.,  Sec.  12072. 

Mississippi.  Coile  of  1906,  Ch. 
5,  Sees.  41  and  42. 

New  Jersey.  Rules  150  and  151 
(notice  of  appeal  filed  with  the 
clerk.  This  is  followed  by  a  peti- 
tion of  appeal  presented  to  the 
Court  of  Errors  and  Appeals  within 
twenty  days  after  filing  of  the  no- 
tice of  appeal.  See  Rule  21,  Court 
of  Errors  and  Appeals). 

Vermont.  Public  Statutes  of 
1906,  Chap.  65.  Sec.  1307. 

United  States.  Supreme  Court 
Rule  35  (On  appeals  direct  from 
district  court  to  Supreme  Court, 
appellant  must  file  with  the  clerk 
of  the  court  below  with   his   peti- 


tion for  the  appeal,  an  assignment 
of  errors  which  shall  set  out  sepa- 
rately and  particular!}'  each  error 
asserted  and  intended  to  be  urged). 

The  same  practice  as  to  assign- 
ment of  errors  is  followed  on  ap- 
peals to  the  circuit  courts  of 
appeals.  Rule  11,  U.  S.  Circuit 
Court  of  Appeals. 

In  Florida  the  assignment  of 
errors  must  be  filed  with  the  clerk 
when  the  transcript  is  applied  for. 
Supreme  Court  Sp.  Rule  4. 

In  Delaware,  although  the  chan- 
cellor allows  the  petition  for  ap- 
peal, it  is  a  matter  of  right  and 
must  be  granted  where  there  is  a 
final  or  interlocutory  decree.  Ellis 
V.  Penn.  Beef  Co.,  80  Atl.  666 
(Del.  1911). 

In  Vermont  the  filing  of  a  motion 
for  appeal  with  the  clerk  of  the 
court  of  chancery  transfers  in- 
staitter  the  cause  to  the  Supreme 
Court.  Lafontain  &  Staples  v. 
"Wilder  &  Nichols,  85  Atl.  5  (Vt. 
1912). 

In  Tennessee  errors  in  the  de- 
cree must  be  assigned  on  appeal. 
Supreme  Court  Rule  20. 

In  Mississippi  an  assignment  of 
errors  must  be  filed  on  or  before 
the  return  day  of  the  district  from 
which  a  case  comes.  Supreme 
Court  Rule  6. 

39.  In  Virginia  and  West  Vir- 
ginia a  petition  for  appeal  stating 
the  case  briefly,  specifically  de- 
scribing the  decree  complained  of 
and  assigning  the  errors  in  such 
decree  and  praying  for  an  appeal 
or  an  appeal  and  supersedeas,  as  de- 
sired, is  presented  to  the  Supreme 


EXCEPTIONS  AND  APPEALS 


845 


The  appeal  must  be  returnable  to  the  appellate  court 
within  the  time  prescribed  by  statute.^" 

In  those  jurisdictions  where  it  is  necessary  to  file  an 
assignment  of  the  causes  of  appeal,  only  the  errors  so 
assigned  can  be  considered  in  the  appellate  court.^''^ 


Court  of  Appeals  or  judge  witbin 
one  year  from  the  date  of  the  de- 
cree accompanied  by  a  transcript  of 
the  record  of  the  cause  and  a  certif- 
icate by  counsel  practicing  in  the 
appellate  court  that  in  his  opinion 
it  is  proper  that  the  decision  should 
be  reviewed  by  such  court.  Va. 
Code  of  1904,  Sec.  3455;  W.  Va. 
Code  of  1906,  See.  4040;  Sup.  Court 
Eule  1. 

40.  Lowe  V.  Delany,  54  Fla.  677 
(1907);  Maine,  E.  S.,  Chap.  79,  Sec. 
22  (to  next  law  court  to  be  held  in 
the  district  where  the  cause  is 
pending). 

U.  S.  Supreme  Court  Eule  8  (All 
appeals,  writs  of  errors  and  cita- 
tions must  be  returnable  not  ex- 
ceeding thirty  days  from  the  day 
of  signing  the  citations  whether 
the  return  day  falls  in  vacation  or 
in  term-time,  and  must  be  served 
before  the  return  day). 

The  rule  as  to  return  day  and 
service  of  citations  in  the  United 
States  circuit  courts  of  appeals  is 
the  same  as  rule  8  of  the  Supreme 
Court  except  as  follows: 

Fifth  circuit — Appeals  from  in- 
terlocutory decrees  returnable  not 
exceeding  ten  days.  Par.  5,  Eule 
14,  Circuit  Court  of  Appeals  for 
fifth  circuit  as  amended  Jan.  12, 
1905. 

Eighth  Circuit — Appeals  return- 
able in  sixty  days.  5th  Par.  of 
Eule  15  of  Circuit  Court  of  Appeals 
for  eighth  circuit. 

In  Florida,  appeals  in  the  matter 


of  return  days  follow  the  analogy 
of  writs  of  error.  Parker  v.  Even- 
ing News  Publishing  Co.,  54  Fla. 
482   (1907). 

If  an  entry  of  appeal  is  void  be- 
cause made  returnable  contrary  of 
law,  a  perfected  entry  may  be  made 
without  formal  disposition  of  the 
void  entry.  Stanley  v.  Cypress 
Co.,  54  Fla.  583   (1907). 

In  Tennessee  an  appeal  should 
be  made  returnable  to  the  present 
term  of  the  appellate  court  if  in 
session,  otherwise  to  the  next  term. 
Pond  V.  Trigg,  5  Heisk.  532  (1871). 

40a.  Eichard  v.  Stemer  Bros.,  44 
So.  562  (Ala.  1907);  Smith  v.  Del- 
lott,  244  111.  75  (1910);  Supplee  v. 
Cohen,  81  N.  J.  Eq.  500  (1913). 

Pennsylvania  Eq.  Eule  92  requir- 
ing appellant  to  file  in  the  court 
below  a  brief  statement  of  errors 
contemplates  the  filing  of  assign- 
ments also  in  the  appellate  court 
under  rule  11.  Jones  v.  Weir,  217 
Pa.  321  (1907). 

It  was  stated  in  No.  Mountain 
W.  S.  Co.  V.  Troxell,  223  Pa.  315 
(1909)  that  "assignments  of  error 
are  part  of  the  pleadings  in  an 
appellate  court  and  they  must  be 
complete  within  themselves,  dis- 
closing the  cause  of  the  alleged 
error.  They  take  the  place  of  a 
statement  of  the  cause  of  action  in 
the  trial  court,  and  if  they  do  not 
embody  or  contain  sufficient  aver- 
ments or  show  that  the  appellants 
have  a  cause  of  action,  they  are  in- 


846 


EQUITY  PRACTICE 


§  508.  Appeal  bond.  In  some  states  no  appeal  can  be 
perfected  until  the  appellant  signs  a  bond  to  pay  the 
costs  of  appeal,  or  if  the  decree  is  for  the  pajTnent  of 
money,  to  pay  both  judgment  and  costs."* ^  A  time  limit 
is  usually  named  in  the  statutes  for  filing  this  bond  and 
on  failure  to  do  so,  the  appeal  will  be  dismissed.^- 

§  509.  Orders  for  protection  of  parties  pending  appeal 
from  final  decree.  When  an  appeal  is  taken  from  a  final 
decree,  it  is  sometimes  provided  by  statute  that  the  jus- 
tice who  made  the  decree,  or  the  appellate  court,  may 
make  such  orders  for  the  appointment  of  receivers,  for 
injunction  and  prohibition,  or  for  continuing  the  same  in 
force,  and  such  other  orders  as  are  needful  for  protection 


sufficient  and  must  be  disre- 
garded." 

They  should  set  out  the  decree, 
exceptions  alleged  not  to  have  been 
acted  upon,  or  the  evidence  admit- 
ted and  rejected.  Jones  v.  Weir, 
217  Pa.  321  (1907).  They  should 
specifically  point  out  the  errors 
committed.  Koutnik  v.  Cody,  148 
111.  App.  313  (1910). 

If  assignments  of  error  fail  to 
show  specifically  that  an  exception 
was  taken  or  if  taken  how  it  was 
finally  disposed  of,  they  will  be 
dismissed.  Chisholm  v.  Thompson, 
233  Pa.   181    (1911). 

Assignments  of  error  should  be 
taken  to  the  decree  and  not  to  the 
opinion  of  the  court.  Condron  v. 
Penn.  R.  Co.,  233  Pa.  197  (1911). 

41.  Alabama.  Code  of  1907,  Sees. 
2873-4. 

lUinois.  ,T.  &  A.  U  8629,  Kurd's 
Stat,  of  1912,  Chap.  110,  See.  92. 

Mississippi.  Code  of  1906,  Ch.  5, 
Sec.  49. 

Tennessee.  Code  of  1896,  Sec. 
4898. 

West  Virginia.  Code  of  1906,  Ch. 
135,  Sec.  14. 


United  States.  E.  S.,  Sec.  1000, 
U.  S.  Comp.  Stat.  1901,  p.  712. 

If  an  appeal  bond  is  not  given 
within  the  time  required  by  stat- 
ute, the  Supreme  Court  is  without 
jurisdiction  of  the  appeal.  Turner 
v.  Simmons,  99  Miss.  28  (1911). 

When  a  joint  appeal  is  allowed, 
all  the  appellants  must  sign  the 
bond  or  the  appeal  on  motion  must 
be  dismissed.  First  Congregational 
Church  of  Harvard  v.  Page,  255  111. 
267  (1912). 

A  surety  on  an  appeal  bond  given 
on  appeal  from  circuit  court  to 
circuit  court  of  appeals  is  liable 
for  the  costs  in  the  appellate  court 
and  also  those  in  the  court  below. 
Fidelity  &  Deposit  Co.  of  Maryland 
V.  Expanded  Metal  Co.,  183  Fed. 
508   (1910). 

42.  Illinois,  ,J.  &  A.  118629, 
Kurd's  Stat.,  Chap.  110,  Sec.  92 
(within  such  time  not  less  than 
twenty  days  as  shall  be  limited  by 
the  court) ;  Tennessee,  Code  of 
1896,  Sec.  4898  (within  thirty  days 
after  decree). 


EXCEPTIONS  AND  APPEALS 


m 


of  the  rights  of  the  parties  pending  the  appeal.^^  While 
in  a  few  states  the  appeal  when  entered  within  the  proper 
time  suspends  the  execution  of  process  until  decision  of 
the  case  or  the  further  order  of  the  appellate  court,^^  yet 
the  general  rule  is  that  an  appeal  from  a  final  decree  will 
not  act  as  a  supersedeas,  unless  a  supersedeas  bond  is 
filed  conditioned  to  pay  the  costs  and  perform  the  decree 
or  if  the  decree  is  for  the  payment  of  money  to  pay  the 
amount  of  the  decree,  damages  and  costs.^^ 


43.  Maine,  E.  S.,  Chap.  79,  See. 
23;  Massachusetts,  E.  L.  1902, 
Chap.  159,  Sec.  21;  Ehode  Island, 
Gen.  Laws  1909,  Chap.  289,  Sec. 
28;  Vermont,  Public  Stat.  1906, 
Chap.  65,  Sec.  1308. 

U.  S.  Eq.  Eule  74  (1913)  pro- 
vides that  on  an  appeal  from  a  de- 
cree granting  or  dissolving  an  in- 
junction, the  judge  who  took  part 
in  the  decision  may  in  his  discre- 
tion at  the  time  of  the  allowance 
of  the  appeal  make  an  order  sus- 
pending, modifying  or  restoring 
the  injunction  during  the  pendency 
of  the  appeal,  upon  such  terms  as 
he  may  consider  proper  for  the  se- 
curity of  the  rights  of  the  oppo- 
site party. 

Where  the  lower  court  makes  an 
order  suspending  an  injunction 
pending  an  appeal,  without  requir- 
ing a  bond,  the  appellate  court 
will  not  order  a  bond  to  be  given 
where  there  is  no  change  in  cir- 
cumstances. Pneumatic  Scale  Cor- 
poration V.  Automatic  Weighing 
Machine  Co.,  200  Fed.  572   (1912). 

44.  Massachusetts,  E.  L.  1902, 
Chap.  159,  Sec.  19.  In  Illinois 
whenever  a  writ  of  certiorari  has 
been  granted  by  the  Supreme 
Court,  the  issuing  or  enforcement 
of  any  mandate  of  the  Appellate 
Court  pursuant  to  its  judgment  or 


of  any  judgment  entered  in  any 
court  or  standing  affirmed  in  any 
court  pursuant  to  the  mandate  of 
the  Appellate  Court  shall  be  stayed 
without  further  order  by  the  Su- 
preme Court  until  a  final  disposi- 
tion of  the  case  by  the  Supreme 
Court.  J.  &  A.  118658,  Kurd's 
Stat.  1912,  Chap.  110,  Sec.  121. 

45.  Alabama.  Code  of  1907,  Sees. 
2873  to  2875. 

Delaware.  Ellis  v.  Penn.  Beef 
Co.,  80  Atl.  666   (Del.  1911). 

Florida.  Gen.  Stat.  1906,  Sec. 
1909. 

Maryland.  Code  of  1904,  Art.  5, 
Sec.  29. 

Michigan.  Act  of  1909,  No.  299, 
Sec.  4;  How.  Ann.  St.  (2d  ed.)  Sec. 
12074. 

Mississippi.  Code  of  1906,  Chap. 
5,  Sec.   61. 

United  States.  Eev.  Stat.,  Sec. 
1000;   Comp.  Stats.  1901,  p.  712. 

In  Maryland  the  lower  court 
may  in  its  discretion  decide  that 
the  case  is  not  a  proper  one  for 
such  stay  and  may  direct  that  the 
decree  or  order  appealed  from  shall 
not  be  stayed  by  such  appeal  or 
only  so  far  or  on  such  terms  as  the 
court  shall  therein  direct.  Code  of 
1904,  Art.  5,  Sec.  29. 

In  Pennsylvania,  Act  of  21st  of 
April,   1846,   Sec.   3,   provides   that 


848 


EQUITY  PRACTICE 


§  510.  What  constitutes  a  final  decree  for  purposes  of 
appeal.  A  linal  decree  for  purposes  of  appeal  is  one 
which  fully  decides  and  disposes  of  the  whole  cause, 
leaving  no  further  questions  for  the  future  consideration 
and  determination  of  the  court.^*^     The  mere  draft  of  a 


appeals  shall  not  supersetle  an  exe- 
cution issued  or  distribution  or- 
dered, unless  taken  and  prescribed 
and  bail  entered  in  the  manner 
herein  prescribed  within  three 
weeks  from  such  entry. 

The  court  may  allow  a  bond  to 
be  filed  nunc  pro  tunc.  Commercial 
National  Bank  \.  Gaukler,  16-i 
Mich.  215   (1910). 

An  appeal  to  the  Supreme  Court 
of  the  United  States  will  act  as  a 
supersedeas  if  taken  and  security 
filed  within  sixty  days,  Sundays 
excluded,  after  decree;  or  if  the 
appeal  be  taken  within  sixty  days, 
the  security  may  by  permission  of 
a  justice  of  the  appellate  court  be 
filed  after  the  sixty  days,  and  the 
appeal  will  in  such  case  act  as  a 
supersedeas.  S.  S.,  Sec.  1007,  as 
amended  1875;  U.  S.  Comp.  Laws, 
p.  714;  Kitehin  v.  Randolph,  93  U. 
S.  89,  23  L.  ed.  810  (1876);  Peugh 
V.  Davis,  110  U.  S.  227,  28  L.  ed. 
127   (1883). 

A  supersedeas  bond  covers  the 
amount  of  the  decree  as  well  as 
damages  for  delay  and  costs. 
Amer.  Surety  Co.  of  New  York  v. 
North  Packing  &  Provision  Co.,  178 
Fed.  810   (1910). 

See  as  to  supersedeas  bonds  in 
district  courts  on  appeals  to  circuit 
courts  of  appeals,  Rule  13,  of  the 
latter  courts. 

In  Florida  an  appeal  will  not  act 
as  supersedeas  unless  it  be  taken 
within  the  time  fixed  by  law  for 
taking  a  writ  of  error,  operating  as 


of  course  as  a  supersedeas.  Or  if 
not  taken  within  that  time  unless 
one  of  the  justices  shall  order  it 
to  act  as  a  supersedeas.  Fia.  Gen. 
Stat.,   1906,  Sec.   1909. 

By  Sec.  1701  a  writ  of  error  oper- 
ates as  a  supersedeas,  if  sued  out 
during  the  session  of  the  court  at 
which  the  judgment  was  rendered, 
or  within  thirty  days  thereafter, 
if  within  that  time  plaintiff  in 
error  files  proper  bond. 

Under  these  provisions  the  thirty 
day  limitation  for  suing  out  super- 
sedeas begins  to  run  from  the  re- 
cording of  the  decree  and  not  from 
the  signing.  International  Kaolin 
Co.  V.  Vause,  60  Fla.  324  (1910). 

Orders  made  after  the  entry  of 
an  appeal  which  prescribe  the  con- 
ditions of  a  supersedeas  bond  can- 
not be  assigned  as  error  on  the  ap- 
peal. Davis  V.  Home,  54  Fla.  563 
(1908). 

A  supersedeas  merely  suspends 
the  enforcement  of  the  decree.  It 
does  not  prevent  the  court  from 
making  orders  necessary  to  pre- 
serve the  funds  or  property.  Mc- 
Kinnon-Young  Co.  v.  Stockton,  53 
Fla.   734   (1907). 

46.  Alabama.  ]\Iead  v.  Christian, 
50  Ala.  561   (1874). 

Florida.  State  v.  White,  40  Fla. 
297   (1898). 

Maine.  Gilpatrick  v.  Glidden,  82 
Me.  203   (1889). 

Tennessee.  Employers '  Indem- 
nity Co.  V.  Willard,  125  Tenn.  288 
(1912). 


EXCEPTIONS  AND  APPEALS 


849 


decree,  however,  even  though  agreed  upon  by  counsel 
and  filed,  is  not  the  decree  of  the  court.  There  is  no  de- 
cree and  consequently  no  appeal  from  it  as  a  decree  until 
the  draft  is  authenticated  and  enrolled.^^ 


Virginia.  Eepass  v.  Moore,  96 
Va.  147   (1898). 

United  States.  Maas  v.  Lon- 
storf,  166  Fed.  41  (1908). 

Under  statutes  relating  to  ap- 
peals the  test  of  finality  to  sup- 
port an  appeal  is  not  whether  the 
cause  remains  in  some  respects  in 
the  court  of  chancery  awaiting  fur- 
ther proceedings  necessary  to  en- 
title the  parties  to  the  full  measure 
of  the  rights,  it  has  been  declared 
they  have,  but  whether  the  decree 
ascertains  and  declares  these  rights 
and  the  decree  is  final  and  will  sup- 
port an  appeal  if  they  are  ascer- 
tained and  adjudged.  Wynn  v. 
Tallapoosa  County  Bank,  168  Ala. 
469  (1910). 

In  a  late  case  in  Rhode  Island 
the  rule  has  been  adopted  that  a 
decree  to  be  final  within  the  stat- 
ute authorizing  appeals  from  final 
decrees  in  equity  cases  must  termi- 
nate the  litigation  on  the  merits  so 
that  in  case  of  affirmance  the  court 
below  will  have  nothing  to  do  but 
to  execute  the  decree  already  en- 
tered. McAuslan  v.  McAuslan,  34 
E.  I.  462  (1912). 

The  following  orders  have  been 
held  to  be  final  and  appealable  as 
such:  An  order  denjnng  interven- 
tion. W.  L.  Weller  &  Sons  v. 
Rensford,  164  Ala.  312  (1910).  A 
decree  confirming  master 's  report 
in  partition  proceedings.  Lincoln 
V.  Africa,  228  Pa.  546  (1910). 

The  following  orders  have  been 
held  interlocutory  and  not  appeal- 
able as  final  decrees:  An  order  for 
a  decree  in  accordance  with  the 
Whltehouse  E.  P.  Vol.  1—54 


findings  of  a  judge.  Kcnworthy  v. 
Equitable  Trust  Co.,  218  Pa.  286 
(1907).  An  order  dismissing  an 
appeal  as  to  one  party.  Root  v. 
Yarlot,  131  111.  App.  530  (1907).  A 
decree  sustaining  a  demurrer  where 
bill  is  not  dismissed.  Hughes  v. 
Hall,  117  Md.  547  (1912);  Moore 
V.  Evans,  98  Miss.  855  (1911);  Arm- 
strong V.  Espy,  220  Pa.  48  (1908), 
A  certification  of  a  verdict  to  a 
chancery  court  on  an  issue  to  a 
jury.  Stalwart  v.  Brown,  155  Ala. 
217  (1908).  A  decree  establishing 
a  right  to  account.  DeGrasse  v. 
Gossard,  138  HI.  App.  375  (1908). 
An  order  overruling  plea  in  abate- 
ment to  the  jurisdiction.  Indem- 
nity Co.  V.  Willard,  125  Tenn. 
288  (1912).  A  decree  directing  par- 
tition by  sale  of  lands.  Angevine 
V.  O'Mara,  86  Atl.  558  (R.  I.  1913). 

In  some  jurisdictions  an  order 
overruling  a  demurrer  to  an  entire 
bill  of  complaint  has  been  held  final 
and  appealable.  Hyattsville  v. 
Smith,  105  Md.  318  (1907);  Moody 
V.  Macomber,  156  Mich.  76  (1909). 
Contra,  Smith  v.  Dellott,  144  111, 
75  (1910). 

The  Supreme  Court  will  of  its 
own  motion  dismiss  an  appeal 
where  the  decree  is  not  final  though 
the  parties  do  not  object.  Abbott 
V.  Landers,  83  Vt.  165   (1910), 

See  also,  as  to  what  decrees  are 
final,  Ch,  XXIII,  Sec.  412,  ante,  p. 
655. 

47.  Cram  v.  Gilman,  83  Me.  193 
(1891);  and  see  Kenworthj'  v. 
Equitable  Trust  Co.,  218  Pa.  286 
(1907). 


850 


EQUITY  PRACTICE 


§  511.  Appeals  from  interlocutory  decrees.  Tliere  can 
be  no  appeal  from  interlocutoiy  decrees  or  orders  as  dis- 
tinguished from  final  decrees,  in  the  absence  of  express 
provision  in  the  statutes.^^  In  most  states,  however,  an 
appeal  is  given  by  statute  either  from  all  interlocutory 
decrees  ^^  or  from  certain  ones  expressly  enumerated 
therein.^'^     The  appeal  must  be  taken  within  a  certain 


48.  The  right  to  appeal  from  an 
interlocutory  decree  is  a  question 
of  jurisdiction  and  cannot  be  con- 
ferred by  consent  of  parties  where 
it  is  not  given  by  statute.  Sumner 
V.  Hill,  157  Ala.  230  (1908).  The 
Supreme  Court  will  of  its  own  mo- 
tion dismiss  the  bill.  Abbott  v. 
Sanders,  83  Vt.  165  (1910). 

In  Michigan  an  appeal  lies  only 
from  a  final  order.  Brooks  v.  Har- 
grave,  162  Mich.  599   (1910). 

In  Tennessee  a  writ  of  error  lies 
only  to  a  final  decree.  Gibson  v. 
Widener,  1  Pick.  16   (1886). 

49.  Laws  of  Delaware,  Chap.  124, 
Sec.  1;  Florida,  Gen.  Stat.,  1906, 
See.  1908:  Maine,  E.  S.,  Chap.  79, 
Sec.  24;  Massachusetts,  E.  L.  1902, 
Chap.  159,  Sec.  25;  New  Jersey, 
Public  Laws  of  1902,  Sec.  114,  as 
amended. 

On  an  appeal  from  an  interlocu- 
tory order  errors  assigned  on  other 
interlocutory  orders  will  not  be  de- 
termined. Prall  V.  Prall,  58  Fla. 
496   (1909). 

50.  Alabama.  Code  of  1907,  Sees. 
283S  to  2S45. 

niinois.  J.  &-  A.  «■  8661,  Kurd's 
Stat..   Chap.   110,   Sec.    123. 

Maryland.  Code  of  1904,  Art.  5, 
See.  27. 

Mississippi.  Code  of  1906,  Ch.  5, 
Sec.  35. 

Pennsylvania,  Purdon's  Digest, 
1903,  Sees.  53,  54. 


Ehode  Island.  Gen.  Laws  of 
1909,  Ch.  2S9,  Sec.  34. 

Tennessee.  Code  of  1896,  Sec. 
4889  (discretionary  with  the  chan- 
cellor). 

Virginia.  See  Code  of  1904,  Sec. 
3454. 

United  States.  Judicial  Code, 
Act  March  3,  19^1,  Ch.  231,  Sec. 
129. 

A  decree  sustaining  a  demurrer 
to  a  cross  bill  and  dismissing  the 
same  is  not  appealable  under  Ala. 
Code  of  1907,  Sec.  2838.  Aston  v. 
Dodson,  161  Ala.  518  (1909). 

In  Mississippi  appeals  from  the 
interlocutory  decrees  enumerated 
in  the  above  statute  must  be  al- 
lowed by  order  of  court.  Greve  v. 
Magee,  92  Miss.  190  (1908).  But 
the  chancellor  should  not  grant  an 
appeal  from  an  interlocutory  de- 
cree passing  upon  a  demurrer 
merely  because  it  is  asked  for,  but 
only  where  there  are  important 
principles  involved  never  before 
settled  in  the  state.  Bierce  v. 
Grant,  91   Miss.   791   (1907). 

In  addition  to  appeals  granted 
by  the  chancellor  it  is  provided  in 
Mississippi  by  Sec.  4908  of  the 
Code  of  1906  that  the  judges  of  the 
Supreme  Court  may  severally  grant 
appeals  from  interlocutory  decrees 
under   certain   circumstances. 

In  Pennsylvania  it  has  been  held 
to  be  the  established  practice  to 
withhold  any  expression  of  opinion 


EXCEPTIONS  AND  APPEALS 


851 


time  after  the  decree  is  entered.^^  The  appeal  docs  not 
generally  stay  proceedings  in  the  cause  in  other  respects 
unless  expressly  so  ordered  by  the  lower  court.^-     Nor 


as  to  the  merits  of  the  controversy 
on  an  appeal  from  a  ruling  on  mo- 
tion for  a  preliminary  injunction. 
Boss  Common  Water  Co.  v.  Blue 
Mountain  Consol.  Water  Co.,  228 
Pa.  235   (1910). 

In  the  Federal  courts,  however,  a 
final  disposition  of  the  case  will  be 
made  on  an  appeal  from  an  inter- 
locutory order  granting  or  continu- 
ing in  force  an  injunction  where 
the  court  is  of  the  opinion  that  on 
final  hearing  the  bill  must  be  dis- 
missed. Arkansas  Southeastern 
Ey.  Co.  V.  Union  Sawmill  Co.,  154 
Fed.  304  (1906). 

51.  Alabama.  Scott  v.  First  Na- 
tional Bank  of  Cleveland,  59  So. 
303  (Ala.  (1913)  (thirty  days). 

Delaware  (On  or  before  first  day 
of  term  next  after  entering  of  said 
decree). 

Florida.      (Six  months.) 
Illinois.       (Taken    within    thirty 
days    from     entry    and    perfected 
within  sixty  days  after  entry.) 
Maine.     (Within  ten  days.) 
Maryland.     (Two  months.) 
Massachusetts,      (Twenty   days.) 
Mississippi.     (Ten  days.) 
Rhode  Island.     (Ten  days.) 
United  States.     (Thirty  days.) 
An  interlocutory  decree  overrul- 
ing  a   demurrer   is   not   appealable 
before  entry  of  final  decree  in  the 
cause.    Worcester  Board  of  Health 
V.  Tupper,  210  Mass.  378   (1911). 

An  appeal  from  an  interlocutory 
decree  in  Virginia  may  be  taken 
within  a  year  from  its  rendition  or 
at  the  election  of  the  party  within 
a  year  after  final  decree.  Hess  v. 
Hess,  108  Va.  48  (1908). 


In  Tennessee  appeals  which  may 
be  allowed  in  the  discretion  of  the 
chancellor  should  be  taken  and 
perfected  within  the  same  time  as 
those  from  final  decrees  which  are 
a  matter  of  right. 

52.  Florida.  Gen.  Stat.  1906,  Sec. 
1909  (or  by  judge  of  Supreme 
Court). 

lUinois.  J.  &  A.  H  8661,  Hurd's 
Stat,  of  1912,  Chap.  110,  Sec.  123 
(no  supersedeas). 

Maine.  R.  S.,  Chap.  79,  Sec.  24 
(no  supersedeas). 

Mississippi.  Code  of  1906,  Ch.  5, 
Sec.  35. 

New  Jersey.  Rule  149  (or  by 
Court  of  Appeals). 

Pemisylvania.  Purdon's  Digest, 
1903,  Sec.  53    (no  supersedeas). 

Rhode  Island.  Gen.  Laws  of 
1909,  Ch.  289,  Sec.  34. 

United  States.  Judicial  Code, 
Act  March  3,  1911,  Sec.  129  (or 
by  appellate  court  or  a  judge 
thereof). 

In  Tennessee  by  statute  the  Su- 
preme Court  in  term,  or  either  of 
its  judges  in  vacation,  may  grant 
a  writ  of  supersedeas  to  supersede 
an  interlocutory  decree  and  require 
a  bond  to  pay  the  amount  of  the 
decree,  if  required  on  final  hearing 
and  all  costs  and  damages.  The  de- 
crees intended  to  be  embraced  by 
the  statute  are  those  of  a  nature 
to  be  actively  enforced  against  the 
rights  or  property  of  the  litigant 
and  the  object  is  to  stay  the  exe- 
cution of  the  decree  until  it  can 
be  revised  on  appeal  from  the  final 
decree.      Blake    v.    Dodge,    8    Lea 


852 


EQUITY  PRACTICE 


does  it  act  as  a  supersedeas  of  the  interlocutory  decree 
without  the  order  of  the  appellate  court.''"' 

Upon  an  appeal  from  a  final  decree,  all  previous  decrees 
and  orders  are  open  for  revision,  reversal  and  approval, 
except  where  an  appeal  is  taken  from  the  interlocutory 
decrees  themselves.^* 

§  512.  Appeals  from  joint  decrees.  All  the  parties 
against  whom  a  joint  decree  is  rendered  and  who  are 
jointly  affected  thereby  must  join  in  the  appeal  from  such 
decree,  or  it  will  be  dismissed  unless  a  severance  is 
made.^^  But  where  only  one  of  the  defendants  is  affected 
bj^  the  decree,  he  may  appeal  without  the  joinder  of  the 
others.^*^  When  some  of  the  parties  affected  by  the  de- 
cree refuse  to  join  in  the  appeal,  the  others  are  entitled 
to  a  severance.^'     It  is  sometimes  provided  by  statute 


465  (1881);  Bainl  v.  Turnpike  Co., 
1  Lea  394  (1878). 

53.  See  statutes  cited  in  note  52, 
ante. 

54.  Wynn  v.  Tallapoosa  County- 
Bank,  168  Ala.  469  (1910);  Maine, 
R.  S.,  Chap.  79,  Sec.  24;  Maryland 
Code  (1904),  Art.  5,  Sec.  28;  Mass- 
achusetts, R.  L.  (1902),  Chap.  159, 
See.  26. 

An  appeal  taken  after  the  rendi- 
tion of  a  final  decree  from  an  inter- 
locutory decree  will  be  dismissed 
if  it  does  not  bring  up  the  final 
decree  for  review.  Stanley  v. 
Standard  Cypress  Co.,  54  Fla.  583 
(1907). 

55.  Reinsford  v.  Magnus  &  Co., 
150  Ala.  288  (1907);  Lovejoy  v. 
Irelan,  17  Md.  525,  69  Am.  Dec.  667 
(1861);  Harison  v.  Oeala  Bldg. 
Assn.,  42  So.  696  (Fla.,  1906); 
Simpson  v.  Greeley,  20  Wall.  (U. 
S.)  152  (1873);  Hampton  v.  Rouse, 
13  Wall.  187  (1871).  In  Masterson 
V.  Herndon,  10  Wall.  416  (1870).  it 
was  held  that  all  the  parties  to  a 


joint  decree  must  be  joined  as  co- 
appellants  on  a  "bill  taken  by  one 
or  more  of  them,  the  reasons  being 
(1)  that  the  successful  party  may 
be  at  liberty  to  proceed  in  the  en- 
forcement of  his  judgment  or  de- 
cree against  the  parties  who  do  not 
desire  to  have  it  removed;  (2) 
that  the  appellate  tribunal  shall 
not  be  required  to  decide  a  second 
or  third  time  the  same  question  on 
the  same  record." 

The  same  practice  prevails  in  the 
circuit  courts  of  appeals.  See 
Grand  Island  &  W.  C.  R.  Co.  v. 
Sweeney,  103  Fed.  342  (1900). 

In  Mississippi  the  practice  is 
contrary  to  the  general  rule. 
Thompson  v.  Toomer,  50  Miss.  394 
(1874). 

56.  J.  M.  &  R.  R.  &  N.  Co.  v. 
Broughton,  38  Fla.  139  (1896); 
Love  v.  Export  Storage  Co.,  143 
Fed.  1  (1906);  Forgay  v.  Conrad, 
6  How.  (U.  S.)  20,  12  L.  ed.  404 
(1848);  Cox.  v.  U.  S.,  6  Peters  12, 
8  L.  ed.  359  (18.32). 

57.  Todd   v.    Daniels,    16   Peters 


EXCEPTIONS  AND  APPEALS 


853 


that  one  of  several  parties  to  a  joint  decree  may  use  the 
names  of  the  others  in  entering  and  perfecting  an  appeal, 
although  he  cannot  make  them  liable  for  any  of  the 
costs  of  the  appeal.^  ^ 

§  513.  Extension  of  time  for  appeal.  In  some  states 
the  time  for  appeal  may  be  extended  for  accident  or  mis- 
take,^^  or  for  cause  shown.*^"  In  the  absence  of  statute, 
however,  the  time  cannot  be  extended  either  by  judicial 
order  *^^  or  consent  of  parties.*^^ 


52   (1842);  Simpson  v.  Greeley,  20 
Wall.  (U.  S.)   152  (1873). 

The  party  or  parties  appealing 
must  notify  the  others  and  they 
must  refuse  before  a  separate  ap- 
peal is  maintainable.  Saunders  v. 
Saunders,  49  Miss.  327  (1873); 
Johnson  v.  Trust  Co.  of  America, 
104  Fed.   174    (1900). 

58.  See  Ala.  Eq.  Rule  85;  Prest- 
ridge  v.  Wallace,  155  Ala.  540 
(1908);  Illinois  J.  &  A.  H  8634, 
Kurd's  Stat.  Chap.  110,  Sec.  97.  See 
also  Md.  Code  of  1904,  Art.  5,  Sec. 
26  (with  or  without  assent  or  join- 
der of  others).  In  Mississippi  if  all 
the  parties  to  a  decree  do  not  join 
in  the  appeal,  the  clerk  shall  issue 
a  summons,  when  the  appeal  is 
taken,  to  such  as  do  not  join  in  the 
appeal  to  appear  before  the  Su- 
preme Court  at  the  return  term  of 
the  appeal  and  unite  in  the  appoal 
and  if  they  fail  to  obey  the  sum- 
mons they  shall  not  afterwards 
have  the  right  of  appeal.  If  any 
of  the  parties  not  joining  in  the 
appeal  are  non-residents  notice  is 
given  by  publication.  The  sum- 
mons to  join  an  appeal  may  be  is- 
sued by  the  clerk  of  the  Supreme 
Court  at  any  time  after  the  trans- 
ccjpt  shall  be  received  by  him,  if 
applied  to  for  it.  Code  of  1906, 
Ch.  5,  Sec.  43. 

59.  Maine.     R.  S.,  Chap.  79,  See. 


26;  Massachusetts  R.  L.,  1902,  Ch. 
159,  Sec.  28.  The  Maryland  Code 
provides  that  an  appeal  may  be 
taken  in  case  of  fraud  or  mistake 
within  two  months  of  discoverv 
of  fraud  or  mistake.  Art.  5,  See. 
32. 

60.  Michigan.  Act  of  1909,  No. 
299,  Sec.  3,  How.  Ann.  St.  (2d  ed.) 
Par.  12073. 

After  the  Supreme  Court  has  dis- 
missed an  appeal  because  not 
taken  in  time  the  lower  court  may 
then  extend  the  time  upon  a  proper 
showing.  Bliss  v.  Kendrick,  159 
Mich.  507  (1910). 

61.  Florida.  Whitaker  v.  Spark- 
man,  30  Fla.  347  (1892). 

Illinois.  McGowan  v.  Duff,  41 
111.  App.  57  (1891). 

Massachusetts.  Snow  v.  Dyer, 
178  Mass.  393  (1901).  Attorney 
General  v.  Barbour,  121  Mass.  568 
(1857). 

Michigan.  Kloty  v.  Judge,  159 
Mich.  639  (1910);  Bliss  v.  Judge, 
159  Mich.  507  (1910). 

Mississippi.  Butler  v.  Craig,  27 
Miss.  628,  61  Am.  Dee.  527  (1854). 

Pennsylvania.  Schrenkersen  v. 
Kislibauoli,  162  Pa.  45  (1894). 

United  States.  Williams  Co.  v. 
U.  S.,  215  TT.  S.  .541,  54  L.  ed.  318 
(1909);  .Tudson  v.  Currier  Co.,  25 
Fed.  705   (1SS5). 

62.  i^(M'  (•a^os   in   note  61,  <an1e. 


854 


EQUITY  PRACTICE 


§  514.  Making  up  the  case  for  the  appellate  court.  The 
duty  of  prci)ariiig  the  tianscript  of  the  record  and  over- 
seeing the  printing  and  typewriting  of  the  case  for  the 
appellate  court  devolves  upon  the  register  or  clerk  of 
courts,"^  although  the  burden  to  see  to  it  that  the  cause 
is  i)roperly  brought  up  to  the  appellate  court  and  that 
the  clerk  seasonably  jirepares  the  record  rests  always 
with  the  moving  party.  Statutes  or  rules  of  court  gener- 
ally state  what  the  transcript  shall  contain,  it  usually 
consisting  of  the  bill  and  all  the  pleadings  in  the  cause 
together  with  the  evidence  unless  tlie  parties  agree  to 
omit    any    jDortion    thereof."*     Where  oral  evidence  is 


63.  Alabama  Code  of  1907,  Sec. 
2848;    United   States   Eq.   Rule   75. 

It  is  the  duty  of  the  clerk  in  pre- 
paring a  transcript  on  an  appeal  in 
equity  to  omit  irrelevant  and  im- 
material matters  and  to  determine 
the  question  of  materiality  by  con- 
ference with  the  attorneys  of  the 
parties  or  the  trial  court.  Spedden 
V.  Baltimore  Refrigerating  &  Heat- 
ing Co.,  117  Md.  413   (1912). 

Where  the  counsel  disagree  as  to 
what  should  constitute  the  record 
the  trial  judge  may  order  the  ap- 
pellant to  submit  a  statement  to 
him  from  which  he  may  determine 
how  the  transcript  should  be  made 
up.  Wilmer  v.  City  of  Baltimore, 
116  Md.  338  (1911). 

The  procedure  in  making  up  and 
filing  the  transcript  is  usually  set 
forth  in  detail  in  the  rules  of  the 
appellate  courts,  and  it  is  imprac- 
tical to  attempt  to  summarize  these 
rules  dealing  as  they  do  with  tlie 
ministerial  duties  of  the  clerks  of 
the  chancery  and  appellate  courts. 

64.  Alabama.     Rule  30. 
Illinois.     Supremo  Court   Rule   1. 
Maryland.     Rule  3  and  4. 


Massachusetts.  R.  L.,  Chap.  173, 
Sec.  117. 

Michigan.  Act  of  1909,  No.  299, 
Sec.  7;  How.  Ann.  St.  (2nd  ed.) 
12077. 

Mississippi.  Code  of  1906,  Ch.  5, 
Sec.  69. 

New  Hampshire.  Supreme  Court 
Rule  3. 

United  States.    Eq.  Rules  75,  76. 

Where  a  transcript  on  appeal 
contains  eight  hundred  and  fifty 
pages  and  the  abstract  over  three 
hundred  it  violates  the  rule  th.Tt  an 
abstract  shall  be  an  abridgement 
of  the  record  and  state  the  e\i- 
dence  in  narrative  form.  Schwit- 
ters  V.  Springer,  233  111.  432  (1908). 

Respondents'  remedy  in  case  of 
omission  from  an  appeal  record  is 
to  apply  for  a  writ  of  diminution 
and  not  to  move  to  dismiss.  Sped- 
den V.  Baltimore  Refrigerating  & 
Heating  Co.,  117  Md.  443   (1912). 

Counsel  cannot  substitute  an 
agreed  statement  of  facts  for  the 
transcript  of  record  on  appeal. 
IMcDavith  v.  Bryant,  104  Md.  187 
(1906). 

Everything  on  which  error  is  as- 
signed must  appear  in  the  abstract 


EXCEPTIONS  AND  APPEALS 


855 


taken,  tlie  stenographer  transcribes  his  shorthand  notes 
of  the  evidence  in  typewritten  form  and  certifies  the 
transcript  to  be  a  correct  record  of  the  evidence  taken  by 
him.  This  is  approved  by  the  chancellor  or  presiding 
justice  "^^  and  the  whole  record  thus  made  up  from  the 
pleadings  and  evidence  is  then  certified  by  the  clerk  to 
be  correct  and  each  printed  copy  by  him  as  a  true  copy 
and  the  record  is  transmitted  to  the  clerk  of  the  appellate 
court.  In  some  states  the  justice  of  the  lower  court  may 
transmit  original  papers  to  the  higher  court.^-^  In  a  few 
jurisdictions  there  are  provisions  for  settling  or  stating 
a  case  in  the  form  of  an  agreed  statement  of  facts  with 
the  points  of  law  involved,  which  statement  constitutes 
the  case  on  appeal.*^^    In  others  by  request  of  the  appel- 


of  the  record.  Laud  v.  Dickinson, 
241  111.  380  (1909). 

In  Tennessee  consent  of  parties 
is  not  necessary  to  the  siibmission 
of  an  appeal  in  a  short  transcript 
as  provided  by  Acts  of  1903,  p.  67 
c.  35.  Leiberman  v.  Bowden,  121 
Tenn.   496    (1908). 

An  appeal  should  not  be  dis- 
missed for  failure  to  bring  up  a 
proper  record,  in  the  absence  of 
negligence  or  indifference,  but  the 
appellee  should  be  asked  to  desig- 
nate the  additional  papers  neces- 
sary to  be  added,  and  the  appellant 
will  be  ordered  to  file  them  under 
penalty  of  dismissal  of  the  appeal. 
State  of  Kansas  v.  Meriwether,  171 
Fed.  39  (1909). 

64a.  The  notes  of  testimony 
must  be  certified  by  either  the  offi- 
cial stenographer  or  the  trial 
judge.  Thomas  v.  Borden,  222  Pa. 
184   (1908). 

Evidence  taken  in  open  court 
must  be  preserved  on  the  record  by 
a  certificate  or  the  specific  facts 
on  which  the  decree  is  based  must 


be  incorporated  therein.  Buettner 
V.  Glos,  240  111.  9  (1909). 

Under  chancery  rule  37  of  Michi- 
gan the  party  desiring  to  appeal 
prepares  and  presents  to  the  court 
for  settlement  such  portion  of  the 
testimony  and  records  in  the  case 
as  he  deems  necessary  to  present 
fairly  the  points  he  desires  re- 
viewed. Notice  is  given  to  the 
opposite  party  to  prepare  and  pre- 
sent such  amendments  as  are  de- 
sired. In  the  absence  of  such 
amendments  being  proposed  the 
case  certified  and  signed  by  the 
trial  judge  is  taken  as  the  case  on 
appeal.  Hamilton  v.  Wilcox,  167 
Mich.  551  (1911). 

In  Vermont  in  order  that  the 
findings  of  the  chancellor  may  be 
considered  on  appeal,  the  evidence 
must  be  attached  to  and  submitted 
by  the  chancellor's  report  as  is  rt- 
quired  in  the  case  of  a  master's  re- 
port. Barber  v.  Bailey,  84  Atl.  608 
(Vt.  1912). 

65.  Delaware,  Eule  60;  Illinois 
Supreme  Court  Rule  12. 

66.  Hurd  's  Stat,  of  Illinois,  Chap. 


856 


EQUITY  PRACTICE 


lant,  the  justice  who  heard  the  case  reports  the  material 
facts  found  by  him.^"  The  oral  evidence  is  usually  not 
made  a  part  of  the  record  unless  on  request  of  the  parties 
it  is  reported  by  the  justice  before  whom  it  is  taken.  The 
statutes  and  rules  generally  fix  a  time  limit "«  within 
which  the  transcript  must  be  filed  in  the  appellate  court. 
The  appellant  is  usually  required  to  pay  the  clerk's  fee 
and  cost  of  the  transcript  as  a  condition  precedent  to 
perfecting  his  appeal.^'^    It  is  sometimes  expressly  pro- 


110,  Sec.  103,  J.  &  A.  f  8640;  United 
States  Eq.  Rule  77. 

67.  Massachusetts,  R.  L.  1902, 
Ohap.  159,  Sec.  23. 

68.  Kurd's  Stat,  of  111.,  Chap. 
110,  Sec.  100,  J.  &  A.  I  8637;  Mary- 
land Code  of  1904,  Art.  5,  Sec.  33 
(three  months  from  time  appeal 
prayed);  Maryland  Rule  2;  Rhode 
Island  Gen.  Laws  of  1909,  Ch.  289, 
Sec.  26  (within  ten  days  after  filing 
claim  of  appeal,  unless  time  ex- 
tended). 

Where  a  transcript  was  not  filed 
within  three  months  after  appeal 
taken  on  account  of  press  of  work 
in  office  of  the  clerk,  whose  duty  it 
was,  the  appeal  will  not  be  dis- 
missed. O 'Sullivan  v.Buckner,  107 
Md.  33   (1907). 

In  the  absence  of  proof  that  the 
clerk  or  appellee  was  delinquent, 
the  presumption  is  that  the  appel- 
lant was  responsible  for  delay  in 
filing  a  transcript  and  he  must  sat- 
isfy the  court  that  by  proper  dili- 
gence the  record  could  not  have 
been  prepared  and  transmitted  in 
time.  Horpel  v.  Hawkins,  115  Md. 
156  (1911). 

The  statutes  sometimes  provide 
for  an  extension  of  the  time  of 
filing  transcript.  See  Rhode  Island 
Gen.  Laws  of  1909,  Ch.  289,  Sec. 
26,  and  Hawkins  v.  Co-Operative 
Building  Bank,  33  R.  L  39   (1911). 


69.  Maryland  Code  of  1904, 
Art.  5,  Sec.  41;  Md.  Rule  10;  Michi- 
gan Public  Acts  of  1909,  No.  299, 
Sec.  7,  How.  Ann.  St.  (2nd  ed.) 
12077;  United  States  Circuit  Courts 
of  Appeals  Rule  31,  Ch.  6. 

Payment  of  the  register's  fee  at 
the  time  of  filing  certified  tran- 
script of  the  record  is  mandatory 
and  jurisdictional.  Thompson  v. 
McKay,  154  Mich.  228  (1908).  But 
where  the  register  considers  the  fee 
paid  and  gives  credit  for  it,  the 
fact  that  it  is  not  paid  within  the 
proper  time  will  not  be  ground  for 
dismissal  of  the  appeal.  Baldwiu 
\.  Escanaba  Liquor  Dealers' 
Assn.,  162  Mich.  703  (1910). 

The  clerk  of  the  trial  court  need 
not  demand  payment  of  the  fee  as 
a  condition  to  his  right  to  with- 
hold the  transcript.  Wilmer  v.  City 
of  Baltimore,  116  Md.  338   (1911). 

Where  one  party  has  paid  the  fee 
and  appealed,  the  other  party  on 
appealing  need  not  pay  a  fee,  the 
costs  including  appeal  fee  being 
provided  for  by  the  final  decree. 
ISIaek  V.  Engel,  165  Mich.  540 
(1911). 

The  clerk  cannot  require  pay- 
ment of  the  costs  of  court  below  as 
a  condition  to  transmitting  the 
record  where  the  appellant  has  filed 
a  supersedeas  bond.  Jennings  v. 
.Johnson,  148  Fed.  337  (1906). 


EXCEPTIONS  AND  APPEALS 


857 


vided  tl'iat  the  statutes  governing  the  makiflg  up  and  fil- 
ing of  transcripts  on  writs  of  error  or  in  common  law 
actions  shall  api)ly  to  appeals  in  equity."" 

§  515.  Effect  of  decree  of  chancellor  or  single  justice. 
It  is  the  general  rule  that  at  the  hearing  of  a  cause  upon 
appeal  accompanied  by  a  full  report  of  all  the  evidence, 
the  decision  of  the  chancellor  or  single  justice  below  upon 
matters  of  fact  will  not  be  reversed  unless  clearly  erro- 
neous, and  the  burden  of  sliowing  such  error  falls  upon 
the  appellant.''  But  it  is  held  that  a  hurried  examination 
of  a  long  and  complicated  case  below  may  be  less  satis- 
factory than  a  deliberate  re-examination  afterwards  with 
the  aid  of  a  printed  record,  although  one  who  sees  and 
hears  the  witnesses  can  judge  of  their  credibility  better 
than  others  who  merely  review  the  printed  testimony.'^  ^ 


TO.  In  Florida  the  provisions  re- 
lating to  writs  of  error  governing 
filing  of  transcripts  of  records  and 
proceedings  thereon  and  the  assign- 
ments of  errors,  and  the  duty  of 
appellate  court  in  examining  the 
record,  giving  judgment  and  caus- 
ing execution  of  its  decrees  are  ap- 
plicable to  appeals  in  chancery. 
Gen.  Stat.  1906,  Sec.  1912  j  Eq. 
Rule  93. 

71.  Florida.  Sheppard  v.  Crow- 
ley, 61  Fla.  735  (1911). 

Illinois.  Ehrich  v.  Brunshwiler, 
241  111.  592  (1909). 

Maine.  Carll  v.  Kerr,  89  Atl. 
150  (1914);  Hartley  v.  Eichardson, 
91  Me.  424  (1898). 

Massachusetts.  Szathmary  v. 
Boston  &  A.  R.  Co.,  214  Mass.  42 
(1913). 

Mississippi.  Noyse  v.  Howey,  98 
Miss.  30  (1910). 

Pennsylvania.  Bcranton  Gas  & 
Water  Co.  v.  Delaware  L.  &  W.  R. 
Co.,  225  Pa.  152  (1909). 

Vermont.  Morgan  v.  Morgan',  82 
Vt.  243  (1909). 


Virginia.  John  Diebold  &  Sons 
Stone  Co.  v.  Tatterson,  80  S.  E.  585 
(Va.  1914). 

West  Virginia.  Protzman's  Ex- 
ecutor v.  .Joseph,  65  W.  Va.  788 
(1909). 

United  States.  Blank  v.  Aron- 
son,  187  Fed.  241   (1911). 

72.  Leighton  v.  Leighton,  91 
Me.  593  (1898).  It  has  been  said 
that  the  Supreme  Court  is  bound  to 
exercise  its  own  judgment  in  pass- 
ing upon  questions  of  fact.  Shep- 
hard  v.  Shephard,  164  Mich.  183 
(1910). 

Where  the  chancellor  or  single 
justice  hears  the  evidence  in  open 
court  and  sees  the  witnesses,  his 
findings,  for  that  reason,  should 
not  be  disturbed.  Powers  v. 
Bridgeport  Oil  Co.,  238  111.  397 
(1909) ;  at  least  not  except  for  good 
and  sufficient  reason,  Nichols  v. 
Hoxie,  33  R.  I.  77  (1911). 

Where  the  chancellor  on  report 
of  evidence  by  the  master  without 
conclusions  has  no  better  oppor- 
tunity   of    judging    credibility    of 


858 


EQUITY  PRACTICE 


§  516.  Objections  on  appeal.  The  general  rule  is  that 
objections  will  not  be  considered  on  appeal  unless  the 
record  shows  that  they  were  raised  and  insisted  on  in 
the  court  below."'*  Thus  objections  that  evidence  was 
improperly  admitted  below  "^  or  that  a  bill  which  charges 


witnesses  than  the  Supreme  Court, 
the  hearing  on  appeal  is  de  novo  on 
the  same  evidence.  State  Bank  of 
Clinton  v.  Barnett,  250  111.  312 
(1911),  although  it  has  been  held 
in  Florida  under  the  same  circum- 
stances that  the  findings  of  chan- 
cellor, while  not  entitled  to  the 
weight  of  a  verdict,  should  not  be 
disturbed  unless  clearly  erroneous. 
Barnes  &  Jessup  Co.  v.  Williams, 
64  Fla.  190   (1913). 

In  Alabama  by  statute  no  weight 
is  given  the  decision  of  the  chan- 
cellor upon  the  facts,  but  the  Su- 
preme Court  shall  weigh  the  evi- 
dence and  give  judgment  as  they 
deem  just.  Code  1907,  Sec.  5955 
(1).  And  since  the  decision  on  the 
facts  is  de  novo  the  appellate  court 
may  revise  exceptions  taken  to  the 
admission  or  exclusion  of  evidence 
in  the  trial  court.  Freeman  v. 
Blount,  172  Ala.  655  (1911). 

In  Tennessee,  Shannon 's  Code, 
Sec.  4887,  authorizing  a  re-examina- 
tion of  the  whole  matter  of  law 
and  fact  on  appeal  does  not  apply 
where  the  examination  of  witnesses 
was  taken  in  open  court,  and  in  the. 
latter  case  the  findings  of  a  chan- 
cellor sitting  as  a  jury  will  have 
the  force  of  a  verdict  and  will  not 
be  disturbed  where  the  evidence  is 
conflicting.  Beatty  v.  Schenk,  127 
Tenn.  63  (1913). 

73.  Alabama.  Gunn  v.  Brantley, 
21  Ala.  633,  644  (1852). 

Florida.  Lovett  v.  Armstrong, 
61    Fla.    681    (1911);    West    Coast 


Lumber  Co.  v.  Griffin,  54  Fla.  621 
(1907). 

Illinois.  Webb  v.  Alton,  M.  & 
F.  Co.,  10  111.  223  (1848). 

Maryland.  Code  of  1904,  Art.  5, 
Sec.  36. 

Massachusetts.  Blauchard  v. 
Cooke,  147  Mass.  215  (1888); 
Nowell  V.  Boston  Academy,  130 
Mass.  209  (1881);  Mason  v.  Daly, 
117  Mass.  403  (1875). 

MicMgan.  Eedfield  v.  Eeid,  148 
Mich.  545  (1907). 

Pennsylvania.  Rule  67;  Page  v. 
Lytle,  229  Pa.  198  (1910). 

Vermont.  Van  Xaimee  v.  Groot, 
40  Yt.  44  (1868). 

Failure  to  file  a  statement  of 
errors  in  the  trial  court  under 
Pennsylvania  Equity  Rule  92  is  not 
necessarily  fatal  but  such  filing 
may  be  allowed  nunc  pro  tunc 
where  it  would  be  no  hardship  on 
the  other  party.  King  v.  Ambrose, 
232  Pa.  617  (1911).  Rule  92  has 
now  been  annulled  by  order  of  the 
Supreme  Court. 

74.  Barnes  &  Jessup  Co.  v.  Put- 
nam, 64  Fla.  190  (1912);  Blanchard 
V.  Cooke,  147  Mass.  215  (1888); 
Maryland  Code  of  1904,  Art.  5,  Sec. 
36;  Pennsylvania  Eq.  Rules  66-67; 
Barber  v.  Bailey,  84  Atl.  608  (Vt. 
1912).  In  making  up  the  report  of 
the  evidence  for  appeal  where  ex- 
ceptions have  been  taken  to  the  ex- 
clusion of  any  evidence  before  the 
master,  chancellor,  single  justice, 
or  jury,  such  excluded  evidence 
should  be  taken  out  and  reported, 


EXCEPTIONS  AND  APPEALS 


859 


fraud  '^  does  not  set  forth  in  detail  the  acts  constituting 
such  fraud,  or  that  interest  was  improperly  allowed  by 
a  master  in  liis  report  and  the  decree  thereon/"  all  come 
too  late  on  appeal  when  not  raised  below. 

§  517.  Further  evidence  on  appeal.  No  witnesses  are 
heard  orally  before  the  appellate  court  as  a  part  of  the 
case  on  appeal,  but  the  court  may  in  such  manner  and 
on  such  terms  as  it  deems  proper  authorize  additional 
evidence  to  be  taken  when  the  same  has  been  omitted  by 
accident  or  mistake  or  discovered  after  the  hearing."' 

§  518.  Decision  on  appeal.  When  a  cause  comes  up 
on  appeal,  it  comes  up  for  final  decision  unless  the  court 
shall  otherwise  order,  which  is  rarely  the  case,  and  the 
duty  of  the  upper  court  is  to  determine  whether,  upon  the 
record  and  report  of  all  the  evidence  in  the  case,  the  de- 
cision of  the  court  below  was  correct."^     The  appellate 


or  its  nature  clearly  shown,  so  that 
if  it  should  be  held  material  by 
the  upper  court,  it  would  not  be 
necessary  to  issue  a  commission  to 
take  the  required  evidence  or  to 
remand  the  cause  for  this  purpose. 

In  Barber  v.  Bailey,  84  Atl.  60S 
(Vt.  1912)  it  was  held  that  the 
findings  of  fact  by  a  chancellor 
stand  like  the  report  of  a  special 
master  and  good  practice  requires 
that  questions  of  admissibility  of 
evidence  should  be  reserved  by  ex- 
ceptions filed  in  the  «ourt  below. 

In  Trask  v.  Chase,  107  Me.  137 
(1910)  it  was  held  that  exceptions 
to  the  exclusion  of  evidence  serve 
no  useful  purpose  on  appeal  since 
the  court  does  not  sustain  the  ex- 
ceptions if  the  rulings  are  errone- 
ous and  send  the  case  back  for  a 
new  hearing  but  determines  the 
whole  case  on  the  appeal  on  such 
evidence  as  it  deems  admissible. 

Under  Rule  11  of  the  Circuit 
Court  of  Appeals  for  the  Fourth  Cir- 


cuit, a  plain  error  though  not  as- 
signed may  be  considered  where 
the  failure  to  consider  it  would 
result  in  great  injustice.  Centra) 
Improvement  Co.  v.  Cambria  Steel 
Co.,  201  Fed.  811   (1913). 

While  the  correctness  of  rulings 
on  the  admission  of  evidence  will 
not  ordinarily  be  reviewed  on  au 
appeal,  but  only  on  a  bill  of  ex- 
ceptions, yet  where  the  judge  in  his 
report  of  the  evidence  raises  the 
question  of  the  correctness  of  the 
ruling,  it  will  be  considered  by  the 
Supreme  Court.  Kuowles  v. 
Knowles,  205  Mass.  290   (1910). 

75.  Redman  v.  Hurley,  89  Me. 
428  (1896). 

76.  Popple  V.  Day,  123  Mass.  o20 
(1878). 

77.  Maine  R.  S.,  Chap.  79,  Sec. 
32;  Massachusetts  R.  L.  of  1902, 
Chap.  159,  Sec.  24;  Rhode  Island 
Gen.  Laws  of  1909,  Ch.  289,  Sec.  30. 

78.  IMason  v.  Daly,  117  Mass.  403 
(1875);  Riehl  v.  Riehl,  247  111.  475 


860 


EQUITY  PRACTICE 


court  therefore  either  affirms  the  decree  of  the  chancellor 
or  single  justice  and  dismisses  the  aj^peal,  or  reverses  or 
modifies  such  decree,  or  remands  the  cause  for  further 
proceedings  below  as  it  deems  proper.'-'     Where  a  de- 


(1910);  State  v.  Venice  of  America 
Land  Co.,  160  Mich.  680  (1910). 

It  is  not  the  duty  of  the  Supreme 
Court  originally  to  find  the  facts, 
and  where  the  judge  of  the  trial 
court  fails  to  find  the  facts  from 
conflicting  testimony  when  it  is 
possible  for  him  to  do  so  and  mere- 
ly makes  a  summary  of  the  state- 
ments of  the  several  witnesses,  the 
case  will  be  remanded  that  the 
facts  may  be  found  in  accordance 
with  equity  rules.  Miller  v.  Cock- 
ins,  231  Pa.  449  (1911). 

On  appeal  from  a  decree  the  ap- 
pellate court  must  weigh  the  evi- 
dence and  determine  whether  on 
such  evidence  the  decree  is  right. 
Van  Ederstine  V.  National  Discount 
Co.,  174  Fed.  518  (1909). 

A  decree  not  violating  the  plain 
preponderance  of  the  evidence  or 
of  any  legal  principle,  will  be  af- 
firmed. Butcher  v.  Chidester,  68 
W.  Va.  488  (1911). 

Where  the  hearing  is  de  jioio  on 
the  record  the  decree  must  be  re- 
versed in  the  absence  of  any  evi- 
dence to  support  it.  Leiberman, 
V.  Bowden,  121  Tenn.  496  (1908). 

On  appeal  a  decree  will  not  be 
changed  in  form  of  a  party  not  ap- 
pealing. Herpel  v.  Herpel,  162 
Mich.  606  (1910). 

A  ruling  of  the  trial  court  deny- 
ing defendant's  right  of  appeal 
from  an  order  which  he  claimed  to 
be  a  final  one  cannot  be  reviewed 
on  an  appeal  from  a  subsequent 
order.  McCullough  v.  McCullough, 
238  ni.  50  (1909).  Nor  can  a  final 
decree  be  reviewed  on  appeal  from 


an  order  carrying  its  provisions 
into  effect.  MacAfee  v.  Catchings, 
153  Ala.  426   (1907). 

On  an  appeal  all  questions  pre- 
sented by  the  record  are  review- 
able regardless  of  a  subsequent  de- 
cree entered  by  the  trial  justice. 
Pride  v.  Pride  Lumber  Co.,  109  Me. 
452  (1912). 

79,  Maine  E.  S.,  Chap.  79,  Sec. 
22;  Massachusetts  R.  L.,  1902,  Chap. 
159,  Sec.  19  as  amended;  A'ermont 
P.  S.,  1906,  Sec.  1310. 

The  appellate  court  may  either 
render  the  judgment  which  the 
lower  court  should  have  made. 
Hickman  v.  Chaney,  155  Mich.  217 
(1908);  Mahake  v.  Neale,  23  W. 
Va.  57  (1883).  Or  modify  and  af- 
firm the  decree.  Collins  v.  Smith, 
155  111.  106  (1908);  Lakin  v.  Law- 
rence, 195  Mass.  27  (1907);  Christ 
V.  Kusturer,  25  Mich.  354  (1872); 
Newton  v.  Kemper,  66  W.  Va.  130 
(1909);  Harris  v.  Farmers'  Loan  & 
Trust  Co.  of  New  York,  94  Fed. 
728  (1899);  Hawkins  v.  Cleveland 
C.  C.  &  St.  L.  R.  Co.  99  Fed.  322 
(1900);  Juneau  Ferry  &  Naviga- 
tion Co.  v.  Alaska  Steamship  Co., 
121  Fed.  356  (1903).  Or  remand 
the  case  for  further  proceedings  in 
the  lower  court.  Barker  v.  Ameri- 
can Woolen  Co.,  195  Mass.  591,  10 
L.  R.  A.  (N.  S.)  584  (1907);  Dun- 
shee  V.  Dunshee,  234  Pa.  550 
(1912);  Moore  v.  Jennings,  47  W. 
Va.  181  (1899);  Florida  Central  & 
P.  R.  Co.  V.  Reynolds,  183  U.  S. 
471,  46  L.  ed.  283  (1901);  Barbour 
V.  Coit,  118  Fed.  272  (1902). 

In    the    order   reversing   the    de- 


EXCEPTIONS  AND  APPEALS 


861 


murrer  is  sustained  on  appeal,  if  tlie  bill  is  not  without 
equity  and  is  such  that  the  necessary  amendments  can 
be  made,  the  appellate  court  will  sometimes  retain  the 
bill  and  remand  the  cause  to  the  court  below  in  order 
that  proper  amendments  and  further  proceedings  thereon 
may  there  be  had.  This  however  is  rarely  done,  and  then 
only  upon  terms. ^'^ 

Where  an  appeal  has  not  been  properly  taken  or  per- 
fected, the  proper  remedy  for  the  appellee  is  a  motion  to 
dismiss.^^ 


cree,  the  appellate  court  may  order 
the  performance  of  a  contract. 
Johnson  v.  Johnson,  111  Mich.  114 
(1896).  Or  insert  in  the  order  dis- 
missing the  bill,  a  clause  saving  to 
defendant  all  appropriate  remedies 
for  vindication  of  a  personal  prop- 
erty right.  Price  v.  Price,  68  W. 
Va.  389  (1910). 

Where  a  decree  is  reversed  and  a 
new  decree  entered  in  the  appellate 
court  and  certified  to  the  lower 
court  for  execution,  the  latter  court 
has  no  jurisdiction  to  render  any 
other  decree.  George  v.  Caldwell, 
98   Miss.  820    (1910). 

When  there  has  been  a  jury  trial 
as  a  matter  or  right  and  the  appel- 
late court  believes  there  is  ground 
for  a  new  trial  it  is  the  practice 
in  Tennessee  to  remand  the  case 
for  that  purpose  rather  than  to 
pronounce  final  decree.  Code,  Sees. 
3156,  4469. 

80.  See  York  v.  Murphy,  91  Me. 
320  (1898),  where  a  bill  to  annul  a 
chattel  mortgage  was  retained  for 
amendment  to  a  bill  to  redeem.  It 
is  not  customary  to  allow  amend- 
ments to  be  made  in  the  upper 
court,  but  to  remand  the  cause  to 
the  court  below  for  that  purpose. 
Kennedy  v.  Georgia  Bank,  8  How. 
586,  2  L.  ed.  1209  (1857).     But  it  is 


held  that  this  may  be  done  by  con- 
sent of  counsel  on  both  sides.   Ibid. 

In  Mississippi  when  a  judgment 
or  decree  appealed  from  is  by  the 
appellate  court  reversed  and  re- 
manded to  the  trial  court,  such 
court  has  full  power  to  allow  any 
amendment  to  be  made  to  the 
pleadings  which  it  had  power  to 
allow  before  the  judgment  or  de- 
cree appealed  from  was  rendered. 
This  is  so  even  though  the  cause  is 
remanded  with  directions  to  enter 
a  judgment  or  decree  in  accordance 
with  the  opinion  of  the  appellate 
court.  Haines  v.  Haines,  98  Miss. 
830  (1911).  The  contrary  rule  ap- 
plies in  Illinois.  Gillespie  v.  Ful- 
ton Oil  &  Gas  Co.,  244  111.  9  (1910). 

In  Massachusetts  the  Supreme 
Judicial  Court  now  has  all  the 
powers  of  amendment  of  the  court 
below.  Acts  of  1913,  Ch.  716 
Sec.  3. 

81.  Florida.  Town  of  Enterprise 
v.  State,  24  Fla.  206  (1888). 

New  Jersey.  Hazard  v.  Phoenix 
Woodworking  Co.,  78  N.  J.  Eq.  568 
(1911). 

Tennessee.  Pond  v.  Trigg,  5 
Heisk.  532  (1871). 

Virginia.  Pace  v.  Ficklin,  76 
Va.  292  (1882). 


862 


EQUITY  PRACTICE 


Even  tbongli  an  appeal  has  been  properly  perfected, 
it  may,  on  motion,  be  dismissed  for  want  of  prosecution.^- 

§  519.  Mandate.  When  the  opinion  of  the  appellate 
court  has  been  rendered,  a  certificate  is  sent  by  the  clerk 
of  the  appellate  court  to  the  clerk  of  the  court  where  the 
cause  was  originally  heard  ordering  an  entry  to  be  made 
on  the  docket  of  the  latter  court  in  accordance  with  the 
terms  of  such  decision,  as  for  example,  "Bill  dismissed 
without  costs"  or  "Appeal  dismissed  with  costs,  execu- 
tion to  issue  therefor.  "^^     Such  certificate  and  order 


United  States.  Hook  v.  Mercan- 
tile Trust  Co.,  95  Fed.  41  (1899). 

An  appeal  from  an  order  not  ap- 
pealable will  be  dismissed  even 
though  the  motion  to  dismiss  is  not 
filed  within  the  proper  time.  Peo- 
ple V.  Ault,  117  Md.  631  (1912). 

82.  Vogt  V.  Cottier,  170  Mich. 
124  (1912);  Crawford  v.  Sullivan, 
238  Pa.  142  (1913). 

In  the  absence  of  statute  or  rule  ' 
the  general  principles  of  chancery 
practice  require  that  the  appellant 
shall  appear  at  the  time  set  for  ar- 
gument. Forbes  v.  Thrope,  209 
Mass.  570  (1911). 

83.  In  states  like  Illinois  where 
there  is  an  intermediate  appellate 
court,  it  has  been  held  to  be  the 
practice  that  where  the  Appellate 
Court  improperly  dismisses  the  ap- 
peal, the  Supreme  Court  should  re- 
verse the  order  and  remand  the 
cause  to  the  Appellate  Court  with 
directions  to  consider  and  deter- 
mine the  case  on  its  merits.  If  the 
Appellate  Court  properly  dismisses 
the  appeal,  the  Supreme  Court 
should  enter  a  judgment  of 
aflSrraance.  Eosenthal  v.  Board  of 
Education  of  City  of  Chicago,  239 
111.  29  (1909). 

A  rescript  "bill  dismissed"  with 
docket  entry  in  pursuance  thereto 


is  not  a  final  decree  which  will 
preclude  the  lower  court  from  al- 
lowing an  amendment  changing  the 
case  to  an  action  at  law.  Crosman 
v.  Griggs,  188  Mass.  156  (1905). 

A  judgment  or  decree  of  the 
court  of  appeals  takes  effect  at  the 
latest  from  its  date  and  not  from 
the  receipt  and  recording  of  the 
mandate  of  the  court  below.  Long 
V.  Perine,  44  W.  Va.  243  (1897). 

A  mandate  and  opinion  should  be 
construed  by  reference  to  the  bill 
and  other  proceedings.  Beecher  v. 
Foster,  66  W.  Va.  453  (1909). 

Power  of  the  appellate  court  to 
bring  forward  a  ease  decided  at  a 
previous  term  and  not  remanded  is 
discretionary,  if  proceedings  be 
analogous  to  a  rehearing.  Harwood 
V.  Village  of  West  Eandolph,  82 
Vt.  260  (1909). 

When  the  mandate  has  been  set 
down  and  filed  in  the  lower  court, 
the  appellate  court  has  no  further 
jurisdiction  over  the  case  to  grant 
a  rehearing  or  other  relief  therein. 
Merchants'  National  Bank  v. 
Grunthal,  39  Fla.  388  (1897); 
Monahan  v.  Monahan,  77  Vt.  155 
(1904). 

Proceedings  for  contempt  in  vio- 
lating a  decree  rendered  on  deci- 
sion by  appellate   court  should  be 


EXCEPTIONS  AND  APPEALS 


863 


issued  by  the  clerk  of  the  appellate  court  is  known  as 
the  mandate  of  that  court,  and  on  receipt  of  such  man- 
date the  court  below  must  proceed  strictly  in  accord- 
ance therewith.^^  It  has  no  authority  to  vary  the  decree 
of  the  ujoper  court.*^^  On  the  remanding  of  a  case  with 
direction  to  enter  a  decree  of  a  specific  character,  no 
bill  of  review  will  be  allowed  for  error  in  law,  but  by 
the  weight  of  authority  such  a  bill  of  review  may  be  al- 


instituted  in  the  lower  court,  which 
has  full  power  and  control  of  the 
ease  for  enforcing  the  decree  of 
the  Supreme  Court.  City  of  Eaton 
Rapids  V.  Horner,  126  Mich.  52 
(1901). 

84.  Maine  R.  S.,  Chap.  79,  Sec. 
22,  Eq.  Rule  28.  See  as  to  Federal 
practice  the  Act  of  March  3,  1891, 
Ch.  517,  Sec.  10,  26  Stat.,  p.  829. 
But  this  does  not  prevent  a  decree 
on  affirmance  from  containing  ele- 
ments not  in  the  original  decree,  it 
being  proper  to  enter  such  decree 
as  will  effectuate  the  court's  deci- 
sion. Farnsworth  v.  Whiting,  106 
Me.  543  (1910).  See  also  Coekeran 
V.  Bennett,  233  111.  15  (1908),  and 
Day  V.  Mills,  213  Mass.  585  (1913). 

Where  an  appeal  is  taken  from  a 
decree  entered  in  pursuance  to  a 
rescript  the  only  question  is 
whether  it  confirms  to  the  rescript. 
Attorney  General  v.  N.  Y.,  N.  H.  & 
H.  Ry.  Co.,  201  Mass.  370  (1909). 
If  it  does  it  will  be  dismissed. 
Singer  Mfg.  Co.  v.  Adams,  185  Fed. 
768   (1911). 

85.  Florida.  Bloxham  v.  Florida 
Central  &  P.  R.  Co.,  39  Fla.  243 
(1897). 

Illinois.  So.  Chicago  Brewing 
Co.  V.  Taylor,  ]26  111.  App.  498 
(1906);  Chicago  &  E.  I.  R.  Co.  v. 
People,  219  111.  408  (1906);  Chi- 
cago R.  Equipment  Co.  v.  National 
Hollow   Brake   Beam    Co.,   239    111. 


Ill  (1909);  Gillespie  v.  Fulton  Oil 
&  Gas,  244  111.  9  (1910). 

Maine.  Farnsworth  v.  Whiting, 
106  Me.  543   (1910). 

Pennsylvania.  Cumberland  Val- 
ley R.  Co.  V.  Gettysburg  &  H.  R. 
Co.,  197  Pa.  32  (1900). 

Vermont.  Blair  v.  Richie,  73  Vt. 
109  (1900);  Blondon  v.  McArthur, 
84  Vt.  516   (1911). 

West  Virginia.  Barbour  v.  Tomp- 
kins, 58  W.  Va.  572  (1906). 

United  States.  Boyee's  Ex'rs  v. 
Grundy,  9  Pet.  275  (1835),  9  L.  ed. 
127;  Ex  parte  Dubuque  R.  R.,  1 
Wall.  69,  17  L.  ed.  514  (1863); 
Keasbey  &  Mattison  Co.  v.  Ameri- 
can Magnesia  &  Covering  Co.,  148 
Fed.  91   (1906). 

The  remedy  to  correct  a  decree 
not  conforming  to  the  mandate  is 
by  bill  of  review  or  petition,  the 
latter  remedy  being  preferable. 
Blondon  v.  McArthur,  84  Vt.  516 
(1911). 

An  appeal  from  an  interlocutory 
order  granting  an  injunction  does 
not  remove  the  ease  from  the  Cir- 
cuit Court  to  the  Appellate  Court, 
and  hence  it  is  proper  on  a  dissolu- 
tion of  the  injunction  by  the  Ap- 
pellate Court  to  determine  the  ques- 
tion of  an  assessment  of  damages, 
although  no  mandate  of  the  Ap- 
pellate Court  has  been  filed  in  the 
Circuit  Court.  Frye  v.  Radzinsky, 
219  111.  526   (1906). 


864 


EQUITY  PRACTICE 


lowed  for  after  discovered  matter,  not  known  at  the 
time  of  the  decree  or  which  could  not  be  discovered  with 
reasonable  dilig'ence.^"  In  some  states,  by  statute,  notice 
is  required  to  be  given  to  the  adverse  party  on  the  tiling 
of  the  mandate  and  reinstatement  of  the  cause.'^'^ 

§  520.  Rehearing  on  appeal.  When  a  cause  has  been 
finally  decided  on  ai)peal,  no  rehearing  of  such  appeal 
will  be  granted  nor  even  an  argument  permitted  on  the 
question  whether  a  hearing  should  be  had,  unless  the 
court,  upon  inspection  of  the  petition  for  a  rehearing, 
sees  fit  to  so  order.^^  The  application  for  such  rehearing 
is  addressed  entirely  to  the  discretion  of  the  court.^^  The 


86.  See  Chap.  VI,  Sec.  146,  notes 
27,  28,  ante,  pp.  290,  291. 

87.  See  Gage  v.  People,  22;J  111. 
410  (1906). 

Where  a  cause  is  remanded  with 
specific  directions  to  amend  the  de- 
cree, the  cause  upon  reinstatement 
is  not  one  for  hearing  in  the  ordi- 
nary sense  and  need  not  be  placed 
on  the  chancery  calendar.  So.  Chi- 
cago Brewing  Co.  v.  Taylor,  126 
111.  App.  498  (1906). 

88.  Stewart  v.  Agnew,  1  Shaw 
(Eng.  Ch.)  14;  Tommey  v.  White, 
.3  H.  L.  Case  49  Winchester  v. 
Winchester,  121  Mass.  127  (1876); 
Lincoln  v.  Eaton,  1.32  Mass.  63 
(1882);  Washington  Bridge  v. 
Stewart,  3  How.  413,  11  L.  ed.  658 
(1845);  Brown  v.  Aspden,  14  How. 
25,  14  L.  ed.  311  (1852);  Public 
Schools  V.  Walker,  9  Wall.  603.  19 
L.  ed.  650  (1869);  Ambler  v. 
W^hipple,  23  Wall.  278,  28  L.  ed.  127 
(1874).  While  appellate  courts 
have  the  power  to  grant  rehearings, 
they  are  generally  refused.  Inter. 
Imp.  Fund  v.  Bailey,  10  Fla.  238 
(1863);  Brown  v.  Brown,  64  Mich. 
82  (1887).  In  Stewart  v.  Agnew, 
Lord  Eldon  quoted  the  following 
quaint  statement  upon  this  point: 


' '  If  causes  were  to  be  reheard, 
there  would  be  no  end  of  decisions. 
This  house  would  then  be  a  house 
of  plimeurs  resorts,  and  not  of 
dernier  resort, — a  house  of  many 
applications,  and  not  of  final  judg- 
ment; and  the  celebrated  Latin  epi- 
gram upon  the  tediousness  and  un- 
certainty of  the  Council  at  Spires 
might  then  be  written  over  the 
front  of  this  house  Lites  ibi 
spirant,  sed  niinquam  expirant." 

The  distinction  should  be  care- 
fully borne  in  mind  between  a  re- 
hearing after  appeal  and  a  rehear- 
ing before  entry  of  final  decrees, 
which  latter  proceeding  is  dis- 
cussed cnie,  See.  414.  Moreover, 
the  rehearing  after  appeal  is  not 
to  be  confused  with  a  rehearing 
before  the  chancellor  in  the  Eng- 
lish chancery  practice,  which  was 
in  effect  merely  an  appeal  itself. 
Winchester  v.  Winchester,  121 
Mass.  129  (1876).  The  rehearing 
after  appeal  in  this  country  cor- 
responds to  a  rehearing  after  ap- 
peal to  the  House  of  Lords  in  the 
English  chancer}^  practice.  Dan. 
Ch.  Pr.  (6th  Am"  ed.)  p.  1459  and 
note  2. 

89.  Phosphate    Co.    v.    Anderson, 


EXCEPTIONS  AND  APPEALS 


865 


application  should  distinctly  specify  the  grounds  upon 
which  it  rests,  and  so  far  as  it  involves  matter  of  fact 
should  be  supported  by  affidavits,  in  order  to  show  to 
the  satisfaction  of  the  court  upon  the  face  of  the  peti- 
tion, and  of  the  whole  record  and  files  in  the  case,  prob- 
able cause  for  a  rehearing.^^ 


50  ria.  516  (1905);  Shannon  v. 
Shannon,  10  Allen  (Mar.)  249 
(1865);  Winchester  v.  Winchester, 
121  Mass.  130  (1876);  Steines  v. 
Franklin  County,  14  Wall.  15,  20  L. 
ed.  846  (1871). 

In  the  United  States  Supreme 
Court  no  rehearing  will  be  granted 
unless  some  member  of  the  court 
who  concurred  in  the  judgment 
doubts  its  correctness  and  desires 
a  further  argument,  and  then  not 
unless  the  proposition  receives  the 
support  of  the  majority  of  the 
court.  Brown  v.  Aspen,  14  How. 
25  (1852).  The  same  rule  is  laid 
down  in  Kent  v.  Waters,  18  Md.  53 
(1861);  Winchester  v.  Winchester, 
121  Mass.  127  (1876);  Cassidy  v. 
Bigelow,  27  N.  J.  Eq.  505  (1875). 

If  it  is  clear  that  no  other  con- 
clusion than  that  already  reached 
is  possible,  a  rehearing  will  be  de- 
nied. Dorsey  v.  Gary,  37  Md.  64, 
11  Am.  Eep.  528  (1872);  Sparrow 
V.  Bement,  146  Mich.  326  (1906); 
Russell  V.  Dyer,  43  N.  H.  396 
(1859). 

A  rehearing,  not  being  a  matter 
of  right  but  of  privilege,  the  lower 
court  is  not  bound  to  suspend  entry 
of  final  judgment  pending  applica- 
tion for  a  rehearing.  Powers  v. 
Sturdivant,  200  Mass.   519    (1909). 

90.  Calvin  v.  Warford,  18  Md. 
273  (1861);  Winchester  v.  Winches- 
ter, 121  Mass.  130  (1876). 

The  application  must  be  made  in 
the  manner  indicated  by  statute  or 
Whitehouse  E,  P,  Vol.  1—55 


rule  of  court.  Phosphate  Co.  v. 
Anderson,  50  Fla.  501,  516  (1905). 
But  failure  to  strictly  comply  with 
the  rule  is  not  fatal.  Welch  v. 
Highwood,  150  111.  App.  397  (1909). 
The  application  must  be  made 
within  the  time  limited  by  statute 
or  rule  of  court.  Phosphate  Co. 
V.  Anderson,  50  Fla.  501,  516 
(1905);  Radloff  v.  Ajase,  197  111. 
98  (1902). 

In  Tennessee,  ten  days'  limita- 
tion means  ten  days  from  the  deci- 
sion as  declared  in  the  opinion  and 
not  ten  days  from  entering  decree 
thereon.  Patterson  v.  Greenville 
First  National  Bank,  101  Tenn.  511. 

The  time  may  be  extended  by 
the  court  on  consent  of  parties. 
Mills  V.  Lockwood,  40  111.  130 
(1867).  Contra,  Dudgin  v.  Bron- 
son,  159  Ind.  562   (1902). 

The  application  must  not  be  a  re- 
argument  or  set  forth  new  ground 
not  relied  on  at  the  hearing.  Da 
Costa  V.  Dibble,  45  Fla.  225  (1908): 
Eailroad  Co.  v.  O'Donnell,  208  111 
267  (1904). 

The  application  should  be  sup 
ported  by  certificate  of  counsel 
when  so  required  by  rule  of  court 
Hinds  V.  Keith,  57  Fed.  10  (1893) 

Service  of  copy  of  application  on 
opposite  party  is  sometimes  re- 
quired. Adams  v.  Sharom,  89 
Tenn.  335  (1890).  But  in  Michi- 
gan, the  court  grants  it  svo  sponte 
without  notice.  Culver  v.  Variety, 
etc.,    Co.,    149    Mich.    630     (1907). 


866 


EQUITY  PRACTICE 


A  second  appeal  will  not  be  allowed  upon  the  same 
questions  presented  and  decided  in  the  first, '^^ 


If  rehearing  is  sought  in  an  in- 
termediate court,  it  prevents  judg- 
ment from  becoming  final  and  re- 
viewable until  disposed  of.  Bierce 
V.  Waterhouse,  219  U.  S.  320,  55  L. 
ed.  237  (1910). 

A  second  application  hy  the  same 


party  on  the  same  grounds  will  be 
denied.  Merchants'  National  Bank 
V.  Grunthal,  39  Fla.  388  (1897). 

91.  Martin  v.  Hunter,  1  Wheat. 
304,  355,  4  L.  ed.,  97  (1816);  Corn- 
ing V.  Troy  Factory,  15  How.  451, 
14  L.  ed.  768  (1853). 


CHAPTER  XXIX 


COSTS 


§  521.  Costs  are  discretionary.  The  granting  or  refus- 
ing of  costs  in  equity  is  a  matter  resting  entirely  in 
the  discretion  of  the  court/  except  where  it  is  a  matter 
of  statutory  right. ^ 

This  discretion  will  not  be  reviewed  on  appeal  except 
in  a  plain  case  of  abuse.^    The  general  rule  is  that  the 

1.  Florida.    Mills  v.  Britt,  56  Fla.      But  the  agreement  of  parties  may 


839  (1908). 

Illinois.  Scott  v.  Aultman,  211 
111.  612   (1909). 

Maine.  Allan  v.  Allan,  101  Me. 
153  (1906). 

Maryland.  Owings  v.  Rhodes, 
65  Md.  408  (1886). 

Massachusetts.  R.  L.,  Ch.  203, 
Sec.  14;  Stewart  v.  Finkelstone,  206 
Mass.  28  (1910). 

Michigan.  Citizens'  Savings 
Bank  v.  Vaughan,  115  Mich.  156 
(1897). 

Pennsylvania.  Pa.  Insurance  Co. 
V.  Phila.  National  Bank,  195  Pa. 
34   (1900). 

Tennessee.    Code,  Sec.  4493. 

Vermont.  Lamville  Valley  R. 
Co.  V.  Bixby,  57  Vt.  548  (1885). 

Virginia.  Magarity  v.  Shipman, 
82  Va.  784  (1887). 

United  States.  Kell  v.  Treneh- 
ard,  146  Fed.  245  (1906). 

When  an  issue  is  directed  out  of 
chancery,  costs  are  within  the  dis- 
cretion of  the  court.  Levy  v.  Levy, 
28  Md.  25  (1867);  Decker  v. 
Caskey,   3   N.   J.    Eq.   446    (1836). 


render  the  rule  inapplicable.  Cas- 
tle V.  Castle,  69  W.  Va.  400 
(1911). 

2.  In  New  Jersey,  Chancery  Act, 
Sec.  24,  Revision  of  1902  (P.  L. 
519)  provides  that  on  the  sustain- 
ing of  a  demurrer  to  a  bill  in 
equity  the  costs  must  be  paid  by 
the  plaintiff. 

In  Illinois  when  the  plaintiff  dis- 
misses his  bill  or  the  defendant  has 
it  dismissed  for  want  of  prosecu- 
tion the  defendant  shall  recover 
full  costs.  1  Starr  &  Curtis,  Ann. 
Stat.   1072,  J.   &   A.   1182,732. 

Tennessee  Code,  Sec.  6311,  pro- 
vides that  defendant  shall  recover 
costs  when  plaintiff's  bill  is  dis- 
missed for  want  of  prosecution. 

See  also  Sec.  522,  post,  p.  869. 

3.  Alabama.  Sullivan  Timber 
Co.  V.  Black,  159  Ala.  570  (1909). 

Florida.  Mills  v.  Britt,  56  Fla. 
829  (1908). 

Illinois.  Walker  v.  Montgomery, 
249  111.  378  (1011);  Schwoden  v. 
Smith,  249  111.  574,  94  N.  E.  969 
(1911). 


867 


868 


EQUITY  PRACTICE 


prevailing  party  is  entitled  to  costs.^  But  there  are 
many  exceptions  to  this  rule,  since  the  underlying  prin- 
ciple which  should  guide  the  discretion  of  the  court  in  the 
imposition  of  costs  is  that  the  party  who  by  his  fault 
has  unnecessarily  involved  another  in  litigation  should 
pay  the  entire  expense  thereof,  and  it  does  not  always 
follow  that  the  unsuccessful  party  was  at  fault,  or  that 
the  litigation  was  unnecessary.^ 


Massachusetts.  Stewart  v.  Fink- 
lestonc,  206  Mass.  28,  28  L.  K.  A. 
(N.  J.)  634  (1910). 

Mississippi.  Sledge  v.  Ohen- 
chain,  59  Miss.  616  (1882). 

Philadelphia.  Pa.  Insurance  Co. 
V.  Phila.  National  Bank,  195  Pa. 
34  (1900). 

Tennessee.  State  v.  Lewis,  10 
Lea  168  (1882). 

Vermont.  Brookfield  v.  Bigelow, 
80  \t.  428  (1906). 

United  States.  Trustees  v.  Green- 
ough,  105  U.  S.  527  (1881). 

4.  Florida.  Moyer  v.  Coiner,  422 
(1886). 

Maine.  Stone  v.  Locke,  48  Me. 
425  (1861). 

Massachusetts.  Saunders  v. 
Frost,  5  Pick.  (1827);  Clarke  v. 
Eeed,   11   Pick.   446,  449    (1831). 

Michigan.  Kerr  v.  Tierney,  146 
Mich.  97   (1906). 

New  Hampshire.  Clement  v. 
Wheeler,  25  N.  H.  361  (1852). 

New  Jersey.  Service  Corpora- 
tion V.  DeGrote,  70  N.  J.  Eq.  454 
(1905). 

Pennsylvania.  Swentzel  v.  Penn. 
Bank,  147  Pa.  St.  140,  30  Am.  St. 
Rep.  718,  15  L.  R.  A.  305  (1892). 

Tennessee.  Eaht  v.  Mining  Co., 
5  Lea.  1,  79  (1880). 

Vermont.  Dotey  v.  Johnson,  84 
Yt.  15  (1910). 

This  rule  should  not  be  departed 
from  unless  for  some  cause  shown 


equity  and  good  conscience  requires 
it.  Westfeldt  v.  North  Carolina 
Mining  Co.,  177  Fed.  132  (1910). 

The  general  rule  is  applied  where 
denial  of  plaintiff's  rights  make 
suit  necessary.  lasigy  v.  Chicago, 
etc.,  R.  Co.,  129  Mass.  46  (1880); 
Salisbury  v.  Miller,  14  Mich.  160 
(1866);  Shedwick  v.  Prospect  M.  E. 
Church,  160  Pa.  57  (1894). 

In  Saunders  v.  Frost,  the  court 
said:  "Prima  facie  the  party  who 
fails  must  pay  costs,  and  it  depends 
on  him  to  show  the  existence  of  cir- 
cumstances in  a  sufficient  degree  to 
disjdaee  the  prima  facie  claim  of 
costs.     2  Mad.  Ch.  Pr.  415." 

The  court  in  determining  the 
question  of  costs  may  consider  the 
conduct  of  the  parties  toward  each 
other.  Roby  v.  Skinner,  34  Me. 
270  (1852). 

5.  In  Clark  v.  Reed,  11  Pick. 
(Mass.)  448  (1831)  the  court  said: 
"  If  it  should  appear  that  the  plain- 
tiff had  good  reason  to  think  the 
respondent  was  liable  upon  equit- 
able principles  to  pay  money,  to 
perform  specific  contracts,  or  to 
make  discovery,  and  it  should,  upon 
hearing  of  the  answer,  appear  that 
no  such  cause  existed,  as  the  plain- 
tiff had  reason  to  suppose  did  exist, 
the  court  would  not  award  costs 
against  him,  if  it  appeared  that  the 
respondent  was  in  such  a  situation 
as   to   render   it   probable   that   he 


COSTS 


869 


§  522.  Costs  in  favor  of  prevailing  party.  Tlie  follow- 
ing are  examples  of  the  general  rule  that  the  prevailing 
party  recovers  costs.  In  a  suit  in  equity  for  the  re- 
demption of  mortgaged  real  estate,  if  the  plaintiff  pre- 
vails, he  recovers  costs  in  some  states  by  statute,  as  a 
matter  of  legal  right,''  and  the  plaintiff  in  a  bill  to 
redeem  has  always  been  held  entitled  to  costs,  in  general 
chancery  practice,  where  the  defendant  is  at  fault  by 
unreasonably  refusing  or  neglecting  to  render  an  ac- 
count," or  claiming  more  than  is  due,^  or  rendering  an 


was  ameuable  to  the  call  of  the 
plaintiff  upon  equitable  principles. 
On  the  other  hand,  if  it  should  ap- 
pear that  the  plaintiff  knew  the 
whole  ground  and  made  a  claim 
in  equity  which  was  successfully 
resisted  by  the  respondent,  it  would 
seem  that  costs  should  be  allowed 
as  well  in  equity  as  at  law." 

6.  Dinsmore  v.  Savage,  68  Me. 
191  (1878);  Bean  v.  Brackett,  35 
N.  H.  88  (1856).  The  law  in  this 
respect  in  Maine  has  been  changed 
since  the  decisions  in  Bourne  v. 
Littlefield,  29  Me.  302  (1849)  and 
Kittredge  v.  McLaughlin,  38  Me. 
513  (1854),  which  were  decided  be- 
fore Maine  R.  S.  of  1857,  Ch.  125, 
Sec.  16,  in  which  it  was  provided 
that  the  plaintiff  "shall  be  en- 
titled to  judgment  for  redemption 
and  costs,"  and  see  Maine  E.  S.  of 
1903,  Ch.  92,  Sec.  15,  to  same  ef- 
fect. But  under  the  statute  it  is 
a  prerequisite  to  the  plaintiff's 
bringing  his  bill  to  redeem  that  the 
defendant  should  have  refused  to 
account  or  in  some  way  have  pre- 
vented the  performance  of  the  con- 
dition. Consequently  the  result  is 
practically  the  same  as  under  the 
rule  of  general  chancery  practice, 
which  is  that  the  plaintiff  in  a  bill 
to  redeem  recovers  no  costs,  but  has 
to  pay  them  himself  unless  defend- 


ant is  at  fault  by  refusal  to  account 
or  otherwise. 

Alabama.  Blum  v.  Miehell,  59 
Ala.  535   (1877). 

Massachusetts.  Mills  v.  Day,  206 
Mass.  530  (1910). 

Michigan.  Lamb  v.  Jeffrey,  47 
Mich.  28  (1881). 

New  Jersey.  Melick  v.  Creamer, 
,25  N.  J.  Eq.  429  (1874). 

New  York.  Vroom  v.  Ditmos,  4 
Paige  527  (1834). 

Rhode  Island.  Sessions  v.  Rich- 
mond, 1  R.  I.  298  (1850). 

Vermont.  Thrall  v.  Chittenden, 
31  Vt.  183  (1858). 

7.  Kittredge  v.  McLaughlin,  38 
Me.  513  (1854).  And  generally 
where  the  mortgagee 's  conduct  is 
improper,  he  must  pay  costs. 
Meigs  V.  McFarlan,  72  Mich.  194 
(1888);  Brown  v.  Simons,  45  N.  H. 
211  (1864);  Ryer  v.  Morrison,  21 
R.  L  127  (1899). 

Where  both  parties  are  at  fault, 
costs  are  not  allowed  to  either 
party.  Bowen  v.  Atwood,  10  R.  I. 
302  (1872);  Smith  v.  Blaisdell,  17 
Vt.  (1845).  This  is  sometimes  the 
rule  where  mortgagee's  conduct  is 
improper.  Lamb  v.  Jeffrey,  47 
Mich.  28  (1881);  Winters  v.  Earle, 
52  N.  J.  Eq.  52   (1893). 

8.  Parkhurst  v.  Cummings,  56 
Me.  155  (1868). 


870 


EQUITY  PRACTICE 


incorrect  account,-'  But  no  costs  will  be  allowed  plain- 
tiff" in  a  bill  to  redeem,  brought  before  debt  is  due,^"  or 
where  the  contentions  of  the  mortgagee  as  to  the  amount 
due  are  correct.'"^  On  a  bill  to  foreclose,  the  mortgagee 
prevailing  is  entitled  to  costs  as  a  general  rule,"  but  not 
where  tlie  amount  of  the  mortgage  debt  was  legally  ten- 
dered before  suit.^-  So  the  plaintiff  compelling  a  specific 
performance  will  be  entitled  to  his  costs,^^  but  not  where 
he  has  failed  to  tender  the  purchase  money.^"*  So  costs 
will  be  allowed  the  state  where  it  prevails  on  informa- 
tion brought  by  attorney  general. ^^  So  partial  relief 
usually  entitles  the  plaintiff  to  costs.' '^  Where  plaintiff 
discontinues  his  bill,  it  is  regarded  as  if  defendant  had 
prevailed,  and  the  plaintiff,  as  the  terms  of  such  dis- 
continuance, will  be  compelled  to  pay  the  costs  which  he 
has  thus  unnecessarily  brought  upon  defendant. ''     So 


9.  Hall  V.  Gardner,  71  Me.  233 
(1886);  Milliken  v.  Bailey,  61  Me. 
316  (1872). 

10.  Stinehfield  v.  Milliken,  71 
Me.  567  (1880). 

10a.  Prybeskie  v.  Piechoviak, 
170  Mich.  572   (1912). 

11.  Eansoni  v.  Hall,  56  Me.  142 
(1868);  Forman  v.  Bulson,  30  N. 
J.  Eq.  493  (1879);  Darling  v.  Os- 
borne, 51  Vt.  148  (1878).  Costs  of 
foreclosure  are  paid  out  of  the 
proceeds  of  the  sale.  Berlin  Bldg. 
Association  v.  Clifford,  30  N.  J.  Eq. 
482  (1879). 

12.  Castle  v.  Castle,  78  Mich.  298 
(1889);  Stockton  v.  Mfg.  Co.,  22 
N.  J.  Eq.  56  (1871).  Compare 
Uedelhofen  v.  Mason,  201  111.  465 
(1903). 

13.  Downing  v.  Plate,  90  111.  268 
(1878);  Van  Ranst  v.  Pouells,  2 
Edw.  Ch.  (N.  Y.)  600  (1836). 

14.  Lee  v.  Bickley,  6  Litt.  Se- 
lected    Cases     (Ky.)     290     (1821). 


Plaintiff  may  be  ordered  to  pay 
costs  where  he  has  delayed  in  pay- 
ing the  purchase  price.  Cramwall 
V.  Clinton  Reality  Co.,  67  N.  J. 
Eq.  540  (1904).  Or  where  he  has 
failed  to  offer  performance  in  his 
bill.  Palmer  v.  Palmer,  114  Mich. 
509  (1897). 

15.  Att'y  Gen.  v.  Algonquin 
Club,  155  Mass.  128  (1891). 

16.  Goodell  V.  Goodell,  173  Mass. 
140  (1S99);  Castell  v.  Faber,  166 
Fed.  281   (1908). 

Where  in  a  suit  to  quiet  title, 
court  awarded  plaintiff  relief  only 
as  to  a  small  part  of  the  land,  it 
properly  divided  the  costs  between 
the  parties.  Brown  v.  Powers,  167 
Ala.  518  (1910). 

17.  Bryant  v.  Taylor,  157  111. 
App.  277  (1910);  Mason  v.  R.  Co., 
52  Me.  82  (1861);  Whiten  v. 
Whiten,  5  Cush.  (Mass.)  42  (1849). 
Michigan  Rule  22;  Trust  Co.  v. 
Heath,   150  Fed.   606    (1907).     But 


COSTS 


871 


also  in  case  of  a  discontinuance  as  to  certain  parties. ^^ 
§  523.  Costs  against  prevailing  party.  A  plaintiff  or 
defendant  may  prevail  in  the  suit,  and  yet  not  be  with- 
out fault,  so  that  it  may  be  just  that  he  should  not  re- 
cover costs,^^  and  he  may  even  be  required  to  pay  the 
costs  of  the  other  party.^^^  Thus  the  plaintiff  will  be 
charged  with  costs  where  defendant  has  made  a  tender 


if  costs  are  not  claimed  by  defend- 
ant discontinuance  may  be  allowed 
without  them.  Mason  v.  E.  Co., 
supra.  But  where  a  defendant 's 
action  makes  a  decree  unnecessary, 
plaintiff  on  discontinuance  may  re- 
cover costs.  Cicero  Lumber  Co.  v. 
Cicero,  176  111.  9,  68  Am.  St.  Eep. 
155,  42  L.  E.  A.  696   (1898). 

And  where  defendant's  conduct 
invited  the  litigation  the  plaintiff 
on  dismissing  his  bill  may  be 
awarded  his  costs.  Trustees  First 
Society  of  M.  E.  Church  of  New- 
ark V.  Clark,  41  Mich.  730   (1879). 

It  is  sometimes  provided  by 
statute  that  if  plaintiff  dismisses 
his  bill,  or  defendant  dismisses  the 
same  for  want  of  prosecution,  the 
defendant  shall  recover  from  the 
plaintiff  full  costs.  See  1  Starr.  & 
Curtis  Ann.  Stat.  (111.)  1072,  J,  &  A. 
112732,  Tenn.  Code,  Sec.  6311. 
Under  the  Illinois  statute  a  plain- 
tiff who  procures  the  appointment 
of  a  receiver,  and  then  dismisses 
his  bill,  must  pay  the  compensation 
of  the  receiver,  including  his  solici- 
tor's fee.  Burrowes  v.  Merrifield, 
243  111.  362  (1910). 

18.  Bradley  v.  Merrill,  88  Me. 
319  (1896). 

19.  For  instance,  where  suit, 
though  successful,  was  unnecessary. 

Illinois.     Frisby    v.    Ballance,    5 
111.  287,  39  Am.  Dec.  409  (1843). 
Michigan.     Allen  v.  Detroit,  167 


Mich.  464,  36  L.  E.  A.  (N.  S.)  890 
(1911). 

New  Jersey.  Service  Corpora- 
tion v.  DeGrote,  70  N.  J.  Eq.  454 
(1905). 

Vermont.  Stearns  v.  Wrisley,  30 
Vt.  661  (1858). 

Virginia.  Tapp  v.  Beverly,  1 
Leigh  80  (1829). 

United  States.  Young  v.  Bever- 
ly, 131  Fed.  989  (1904). 

Or  where  plaintiff  employs  a 
more  expensive  remedy  than  is 
necessary.  Insurance  Co.  v. 
Schmidt,  162  Fed.  447  (1908).  See 
Wilcke  V.  Duross,  144  Mich.  243 
(1906). 

If  the  defendant  lets  the  case  go 
to  trial  instead  of  demurring,  there- 
by causing  unnecessary  expense,  he 
cannot  recover  costs  though  suc- 
cessful. Pratt  V.  Millard,  154 
Mich.  112  (1908). 

19a.  Alabama.  Paulding  v.  Wat- 
son,  21   Ala.   279    (1852). 

Illinois.  Howard  v.  Bennett,  72 
111.   297    (1874). 

Michigan.  Taber  v.  Shattuck,  55 
Mich.  370  (1884). 

Pennsylvania.  Muelhof  v.  Boltz, 
215  Pa.  124   (1906). 

Tennessee.  Barker  v.  Wilson,  4 
Hoisk.  268,  271  (1871). 

Vermont.  Mead 's  Admx.  v. 
Owen,  S3  Yt.  132  (1909). 

United  States.  Andrus  v.  Power 
Co.,  169  Fed.  732   (1909). 


872 


EQUITY  PRACTICE 


before  suit  of  all  the  plaintiff  was  entitled  to  recover;  ^"^ 
where  plaintiff's  bill  contains  unfounded  allegations  of 
fraud; -^  where  plaintiff  has  been  guilty  of  laches ;'^'- 
where  defendant  is  a  mere  stakeholder,  though  plaintiff' 
is  successful  ;^-^  or  where  in  a  suit  to  quiet  title,  the  de- 
fendant has  not  impeached  the  title  and  claims  nothing.-"* 

So  in  the  case  of  the  defendant,  even  though  the  bill 
is  dismissed,  he  may  be  compelled  to  pay  costs  where 
he  is  at  fault; -^  or  where  the  litigation  or  costs  were 
caused  by  his  negligence  or  mistake  of  law.^^ 

§  524.  Costs  against  neither  party.  When  both  parties 
are  at  fault,  costs  are  frequently  allowed  to  neither 
party,  or  in  other  words,  each  party  pays  his  own  ex- 
penses.^^    Thus  in  a  bill  to  reform  a  deed  on  the  ground 


20.  Moet  V.  Couston,  33  Beav. 
(Eq.  Ch.)  578,  581. 

21.  Gardener  v.  Emeor,  35  Beav. 
549;  Brinkerhoff  v.  Lansing,  4 
Johns.  Ch.  (N.  Y.)  79  (1819). 

Costs  are  allowed  to  defendant  if 
the  bill  contains  impertinence  or 
scandal. 

Pennsylvania.    Eq.  Eule  15. 

Rhode  Island.    Eq.  Eule  12. 

Vermont.     Eq.  Eule  43. 

22.  Clifton  V.  Orchard,  1  Atk. 
(Eq.  Ch.)  610;  Bracken  v.  Martin, 
3  Yerg  (Tenu)  55  (1832). 

23.  Dowdall  v.  Lennox,  2  Edw. 
Ch.  (N.  Y.)  267  (1834). 

24.  Eobinson  v.  Cubsey,  2  Edw. 
Ch.  (N.  Y.)  138  (1834).  See  Buck 
V.  Swasey,  35  Me.  42  (1852);  Arm- 
strong V.  Douglass,  5  Pickle 
(Tenn.)  220,  230  (1890). 

25.  Fechheimcr  v.  Baum,  43  Fed. 
719  (1890).  In  this  case  it  was 
held  that  where  a  creditor  brings 
suit  to  set  aside  a  preference  as 
fraudulent,  he  will  be  entitled  to 
recover  costs,  even  though  he  fail 
in  his  suit,  since  the  secret  prefer- 


ence by  the  defendants  is  the  cause 
of  his  loss. 

Scandalous  matter  in  an  answer 
is  sufficient  justification  to  refuse 
costs  of  defendant,  although  suc- 
cessful. Mahew  v.  Phoenix,  Ins. 
Co.,  23  Mich.  105  (1871). 

26.  Wray  v.  Williams,  2  Yerg. 
(Tenn.)  302  (1829);  Wendell  v. 
Lewis,  8  Paige  (N.  Y.)  613  (1841). 

27.  Illinois.  Wilson  v.  Lyon,  51 
111.  530    (1870). 

Maine.  Burr  v.  Hutchinson,  61 
Me.  516  (1872);  Peterson  v.  Grover, 
20  Me.  363,  367  (1841). 

Massachusetts.  Clark  v.  Eeed, 
11  Pick.  446  (1831);  Saunders  v. 
Frost,  5  Pick.  259  (1827). 

Michigan.  Summers  v.  Bromley, 
28  Mich.  125  (1873). 

New  Jersey.  Mausert  v.  Feigen- 
span,  69   N.  J.  Eq.  671    (1905). 

Tennessee.  Knuckolls  v.  Lea,  10 
Hump.  (Tenn.)  577  (1850). 

Vermont.  Pinnock  v.  Clough,  16 
Vt.  500,  42  Am.  Dec.  521  (1844). 

Virginia.  Beverley  v.  Brooke,  4 
Gratt.  187  (1847). 


COSTS 


873 


of  a  mistake  which  was  the  fault  of  both  parties,  neither 
party  was  allowed  costs;  ^^  so  where  plaintiff  was  at  fault 
and  defendant  needlessly  brought  cross  bill ;  -"  likewise 
on  a  creditor's  bill  to  reach  and  apply  property  of  his 
debtor  brought  without  previous  demand,  no  costs  were 
allowed  plaintiff.^*^  So  where  material  misrepresenta- 
tions on  the  part  of  the  defendant  were  established,  but 
bill  was  dismissed  for  other  causes,  no  costs  were  al- 
lowed defendant,^^  and  where  the  bill  was  dismissed  for 
want  of  jurisdiction,  but  defendants  detained  assets  to 
which  they  were  not  entitled,  they  were  allowed  no 
costs.^-  Upon  a  like  principle,  where  neither  party  is  at 
fault  no  costs  will  be  given.  Thus  no  costs  are  allowed 
in  amicable  equity  suits,''^  or  where  both  joarties  are  in 


Or  each  party  may  be  made  to 
pay  an  equal  share  of  the  whole 
amount.  Chandler  v.  Sherman,  16 
Fla.  99  (1877);  Schuepfe  v. 
Schnepfe,   108  Md.   139    (1908). 

28.  Burr  v.  Hutchinson,  61  Me. 
516  (1872).  So  in  a  bill  to  reform 
a  deed  where  the  mistake  was  the 
fault  of  plaintiff,  but  the  defend- 
ant might  have  corrected  it. 
Peterson  v.  Grover,  20  Me.  363,  367 
(1841). 

29.  Bogle  V.  Bogle,  3  Allen 
(Mass.)  158  (1861). 

30.  Bessey  v.  Cook,  92  Me.  261 
(1898).  So  in  a  bill  to  compel  heirs 
of  trustee  to  convey,  no  costs  were 
allowed  plaintiff  where  he  was  not 
free  from  fault.  Rines  v.  Batch- 
«lder,  62  Me.  95  (1873). 

31.  Bradley  v.  Chase,  22  Me.  520 
(1843). 

32.  Hawes  v.  Williams,  92  Me. 
483  (1899).  So  in  a  bill  in  equity 
for  specific  performauL-e,  where  bill 
was  dismissed  and  parties  sent  to 
their  remedy  at  law,  no  costs  were 
given,  as  it  was  not  clear  that  there 
was     a     valid     contract     at     law. 


Mansfield  v.  Sherman,  81  Me.  365 
(1889).  See  also  Dyer  v.  Shurtleff, 
112  Mass.  165  (1873),  where  no 
costs  were  allowed  on  appeal,  de- 
cree being  changed  only  in  part; 
also  Park  v.  Johnson,  7  Allen  378 
(1863);  Bartlett  v.  Johnson,  9  Al- 
len 530  (1865).  Where  both  par- 
ties have  taken  proofs  without  ob- 
jection in  a  suit  which  is  subse- 
quently dismissed  for  want  of  juris- 
diction appearing  on  the  face  of 
the  bill,  defendant  will  not  be  al- 
lowed the  costs.  Allen  v.  Consol- 
idated Fruit  Jar  Co.,  345  Fed.  948 
(1906)  and  see  Conley  v.  Ballinger, 
816  U.  S.  84,  54  L.  ed.  393   (1910). 

33.  Rotch  v.  Livingstone,  91  Me. 
461  (1898) ;  Kenniston  v.  Adams,  80 
Me.  290  (1888);  Lane  v.  Lane,  80 
Me.  570  (1888);  Kent  County  Agri- 
cultural Society  v.  Houseman,  81 
Mich.  609  (1890);  McConnell  v. 
McConnell,  11  Vt.  290  (1839). 

And  so  where  suit  was  of  a  pub- 
lic nature  and  caused  by  ambiguous 
legislation  no  costs  were  awarded. 
Clare  County  v.  Auditor  General, 
41  Mich.  182  (1879).  And  the  same 


874 


EQUITY  PRACTICE 


part  successful  in  tlie  contention  which  they  make.-^* 
§  525.  Apportioning  costs.  Another  method  of  impos- 
ing costs  frequently  employed  by  the  courts,  is  to  appor- 
tion them  between  the  parties,  giving  costs  of  particular 
portions  of  the  suit  to  each  party.^^  So  in  bills  for  actual 
partition  of  real  estate,  costs  are  divided  and  apportioned 
among  the  parties  according  to  their  respective  inter- 
ests.^''   Likewise  in  matters  of  account,  the  court  will  fre- 


rule  was  applied  where  the  question 
was  a  novel  one  and  the  losing 
party  acted  in  good  faith.  Myer  v. 
Hart,   40   Mich.   517    (1879). 

33a.  Phy  v.  Clark,  35  111.  377 
(1864);  Farmer  v.  Ward,  75  N.  J. 
Eq.  33  (1908);  Marks  Adjustable 
Folding  Chair  Co.  v.  Wilson,  43 
Fed.  302   (1890). 

A  defendant  who  interposes  two 
defences  and  prevails  on  only  one 
will  not  for  that  reason  be  deprived 
of  costs.  Oliver  v.  Wilhite,  201  111. 
552  (1893). 

34.  McDaniel  v.  Coal,  etc.,  Co., 
153  Ala.  493  (1907);  Waterman  v. 
Alden,  144  111.  90  (1893);  Hall  v. 
Trust  Co.,  122  Fed.  163  (1903).  In 
riatt  V.  Squire,  5  Cush.  551,  558, 
costs  were  allowed  defendant  for 
two  terms  and  no  more,  and  credi- 
tors' fees  were  ordered  paid  equally 
by  both  parties.  So  in  Park  v. 
Johnson,  7  Allen  378  (1863)  where 
a  bill  for  specific  performance  was 
dismissed  upon  an  objection  which 
was  not  taken  till  after  the  mas- 
ter's report,  no  costs  were  allowed 
up  to  that  time,  but  to  the  defend- 
ant after  that  time.  See  also 
Pehon  v.  Foster,  7  Allen  57  (1863). 

The  court  may  apportion  costs 
between  the  parties  where  both  are 
partly  to  blame  for  expenses  of 
trial.  Mfg.  Co.  v.  Metal  Works, 
130  Fed.  778  (1904).  Or  where 
there  are  separate  issues  and  each 


party  succeeds  as  to  part  of  them. 
Grosvenor  v.  Bethel,  93  Tenn.  577 
(1894);  McConnell  v.  McConnell, 
11  Vt.  290  (1839);  Swift  v.  Kor- 
trecht,  112  Fed.  709  (1902).  So 
where  a  cross  bill  is  wholly  dis- 
missed and  the  bill  partly,  costs 
were  equally  divided.  Pa.,  etc.,  R. 
Co.  V.  Phila.,  etc.,  R.  Co.,  160  Pa. 
232  (1899).  But  the  costs  of  the 
original  bill  should  not  be  awarded 
against  a  defendant  brought  in  by 
a  cross  bill.  Kennedy  v.  Kennedy, 
66  111.  100  (1872).  And  where  there 
is  a  reasonable  basis -for  the  suit 
the  costs  may  be  apportioned  even 
though  bill  dismissed.  Bliss  v.  Ana- 
conda Copper  Mining  Co.,  167  Fed. 
1024  (1909). 

Where  defendant  introduced  an 
unnecessary  amount  of  testimony, 
he  was  ordered  to  pay  one-half  the 
costs  though  successful.  Lassater 
v  Garrett,  4  Baxt.  (Tenn.)  375 
(1874). 

35.  Le  Moyne  v.  Harding,  132 
111.  23  (1890);  Womeset  Power  Co. 
V.  Sterling  Mills,  158  Mass.  435 
(1893);  Coles  v.  Coles,  13  N.  J.  Eq. 
365   (1861). 

Solicitors'  fees  may  be  appor- 
tioned among  the  parties.  Searle 
v.  Searle,  122  111.  App.  129  (1905). 

If  the  plaintiff  in  partition  makes 
an  unfounded  claim  to  an  interest 
in  the  property  he  must  pay  the 
costs.     Chilvers  v.  Race,  196  111.  71 


COSTS 


875 


quently  apportion  the  costs  between  the  plaintiff  and 
defendant.^'^ 

§  526.  Costs  out  of  the  fund.  When  a  fund  or  estate 
is  the  subject  of  litigation,  the  court  will  frequently  order 
the  costs  to  be  paid  out  of  such  fund."  Thus  the  costs, 
including  counsel  fees  of  moderate  amount  on  both  sides, 
in  a  suit  in  equity  for  the  construction  of  a  will,  may  be 
allowed  out  of  the  general  assets  of  the  estate;  ^^  so  in  all 


(1902);  Le  Moyne  v.  Harding,  132 
111.  23  (1890). 

Solicitors'  fees  are  apportioned 
under  Kev.  Stat.  Illinois  (1901), 
Sec.  1312,  where  not  necessary  for 
defendants  or  any  one  of  them  to 
employ  counsel  to  protect  their  in- 
terests in  the  lands.  Gehrke  v. 
Gehrke,  190  111.  166  (1901). 

36.  McMahon  v.  Lumber  Co.,  92 
Miss.  459  (1908);  Burnham  v.  Bail- 
ing, 16  N.  J.  Eq.  310  (1863);  Gy- 
ger's  Appeal,  62  Pa.  73  (1869).  But 
the  court  is  not  bound  to  follow 
this  rule  if  the  result  would  be 
inequitable.  Mead  v.  Owen,  83  Yt. 
132  (1910). 

Where  plaintiff  put  into  his  bill 
unnecessary  questions,  the  costs 
were  apportioned  between  the  par- 
ties. Bobbins  v.  Westmoreland 
Coal  Co.,  198  Pa.  301  (1901). 

37.  Patrick  v.  Patrick,  71  N.  J. 
Eq.  347  (1906);  Whitsett  v.  City 
Bldg.,  etc..  Association,  3  Tenn.  Ch. 
526  (1877);  Hobbs  v.  McLean,  117 
U.  S.  567,  29  L.  ed.  940  (1885).  But 
the  litigation  must  have  been  in 
promotion  of  the  interests  of  those 
eventually  found  to  be  entitled  to 
the  fund.  Schwartz  v.  Keystone 
Oil  Co.,  164  Pa.  415  (1894).  Com- 
pare Morton  v.  R.  Co.,  79  Ala.  590 
(1885)  and  Palmer  v.  Texas,  212 
U.  S.  118,  53  L.  ed.  435  (1908). 

38.  Illinois.  Lombard  v.  Wil- 
beck,   173   111.   396   (1898). 


Maine.  Moore  v.  Alden,  80  Me. 
301  (1888);  Straw  v.  Societies,  67 
Me.  493   (1877). 

Maryland.  Thomas  v.  Safe  De- 
posit, etc.,  Co.,  73  Md.  451  (1891). 

Massachusetts.  Eicketson  v. 
Merrill,  148  Mass.,  76  (1888); 
Morse  v.  Stearns,  131  Mass.  389 
(1881). 

Michigan.  Enders  v.  Enders,  49 
Mich.   182   (1882). 

New  Jersey.  Cox  v.  Wills,  49  N. 
J.  Eq.  573    (1892). 

Rhode  Island.  Tiffany  v.  Em- 
met, 24  R.  L  411  (1902). 

Tennessee.  Ensley  v.  Ensley, 
105  Tenn.  107   (1900). 

The  principle  on  which  the  rule 
rests  is  that  the  expense  is  occa- 
sioned by  the  testator's  own  want 
of  care  and  precaution.  Straw  v. 
Societies,  67  Me.  493  (1877). 

The  costs  in  such  cases  should 
generally  come  out  of  the  residue. 
Buchanan  v.  Lloyd,  64  Md.  306 
(1885);  Bowditch  v.  Stoltyk,  99 
Mass.  136  (1868);  Fidelity  Trust 
Company's  Appeal,  99  Pa.  443 
(1882). 

Where  however  the  question  in- 
volved concerns  only  a  distinct  por- 
tion of  the  estate,  the  costs  should 
fall  on  that  portion  only  and  not 
on  the  general  assets.  Thomas  v. 
Baltimore  Safe  Deposit,  etc.,  Co., 
73  Md.  451  (1891);  Bigclow  v.  Mo- 
rong.    103    Mass.    287    (1869).      Or 


876 


EQUITY  PRACTICE 


suits  by  executors  and  trustees  for  institutions.^^  So  in 
general,  trustees  bringing  or  defending  suits  between 
themselves  and  their  cestuis  are  entitled  to  their  costs 
out  of  the  trust  estate.^"  So  a  prevailing  creditor  suing 
an  assignee  is  held  entitled  to  his  costs  out  of  the  fund.^^ 
Likewise  where  several  persons  have  a  common  interest 
in  a  fund,  and  one  of  them,  for  the  benefit  of  all,  brings  a 
suit  for  its  preservation,  he  will  be  allowed  costs  and 
counsel  fees  out  of  the  fund.^- 


the  costs  may  be  taxed  to  the 
share  of  an  unsuccessful  claimant. 
Giger  v.  Bishop,  231  111.  472  (1907) ; 
Mandell  v.  Green,  108  Mass.  277 
(1871). 

The  costs  will  not  be  allowed  out 
of  the  fund  where  the  facts  dis- 
close a  frivolous  and  unnecessary 
case.  Moore  v.  Alden,  80  Me.  301 
(1888);  Dane  v.  Walker,  109  Mass. 
179  (1872);  Att'y  General  v.  Dub- 
lin, 41  N.  H.  91  (1860);  Baxter  v. 
Baxter,  43  N.  J.  Eq.  82  (1887). 

Attorneys'  fees  are  generally  al- 
lowed where  the  suit  for  construc- 
tion was  necessary.  Lewis  v. 
Sedgwick,  223  111.  213  (1906);  Clif- 
ford V.  Stewart,  95  Me.  38  (1901); 
Walker  v.  Waters,  84  Atl.  466 
(Md.  1912);  Heard  v.  Read,  169 
Mass.  216  (1897) ;  Larkin  v.  Wikoff, 
75  N.  J.  Eq.  462  (1911);  Jacobus  v. 
Jacobus,  20  N.  J.  Eq.  49  (1869). 

In  Illinois  it  seems  that  counsel 
fees  are  only  allowed  to  executors 
and  trustees  in  such  cases.  John- 
son V.  Askey,  190  111.  58   (1901). 

The  compensation  of  public  of- 
ficers is  held  to  be  a  proper  guide 
in  taxation  of  counsel  fees.  Frost 
V.  Belmont,  6  Allen  152   (1863). 

39.  Baker  v.  Clark  Inst.,  110 
Mass.  88  (1874);  Sargent  v.  Sar- 
gent, 103  Mass.  297  (1869);  Esty 
V.    Clark,    101    Mass.    36     (1869); 


Brooks  V.  Everett,  13  Allen  457 
(1866);  Amory  v.  Green,  13  Allen 
413  (1866);  W^ilcox  v.  Wilcox,  13 
Allen  252  (1866);  Monks  v.  Monks, 
7  Allen  410  (1863). 

40.  Morton  v.  Berrett,  22  Me. 
257  (1843)  Frederick  County  Farm- 
ers', etc..  Bank  v.  Waymon,  5 
Gill.  (Md.)  336  (1847);  Kinmonth 
V.  Brigham,  5  Allen  270,  280 
(1862).  But  where  a  trustee  min- 
gled the  trust  funds  with  his  own 
property,  he  was  refused  costs  and 
charged  with  the  expenses.  Bogle 
V.  Bogle,  3  Allen  158  (1861).  And 
in  general  where  a  trustee  is  at 
fault,  he  may  be  denied  his  costs 
or  even  be  charged  with  the  costs 
of  other  parties.  Dan.  Ch.  Pr. 
(6th  Am.  ed.),  pp.  1420,  1421; 
Billings  V.  Warren,  216  111.  281 
(1905);  Raybold  v.  Raybold,  20  Pa. 
308  (1853). 

41.  Peck  V.  Stimpson,  20  Pick. 
312  (1838).  In  a  bill  to  enjoin  a 
town  from  distributing  surplus  rev- 
enue, the  plaintiff  was  allowed 
costs  out  of  the  fund.  Pope  v. 
Inhab.  of  Halifax,  12  Cush  410 
(1853). 

42.  Davis  v.  Bay  State  League, 
158  Mass.  434  (1893);  Trustees  v. 
Greenough,  105  U.  S.  527  (1881). 
Attorneys '  fees  may  be  allowed  out 
of  the  fund.         In  re  Weed,  163  Pa. 


COSTS 


877 


§  527.  Several  parties.  The  mere  fact  that  two  or  more 
defendants  plead  severally  does  not  entitle  them  to  tax 
several  costs,  especially  when  they  have  one  and  the 
same  solicitor;  each  case  depends  on  its  own  facts. 
Where  there  were  four  defendants,  and  one  solicitor  ap- 
peared for  all  the  defendants  it  was  held  that  each 
defendant  might  tax  for  an  answer,  but  that  only  one 
bill  for  costs  accruing  after  filing  of  the  answer,  should 
be  taxed. ^^ 

§  528.  Costs  on  amendments.  The  general  rule  is  that 
as  the  condition  of  allowing  an  amendment  of  any  im- 
portance at  any  stage  of  proceedings,  costs  shall  be  paid 
by  the  party  amending  up  to  the  time  of  amendment.^* 
So  where  the  plaintiff  amended  by  the  addition  of  new 


600  (1894);  Campbell  v.  Provident 
Saving  &  Loan  Association,  54  L. 
E.  A.  817  (Tenn.  Ch.  1900).  But 
not  where  every  party  in  interest 
is  represented  by  his  own  coun- 
sel. Stuart  V.  Hoffman,  108  Va. 
307  (1908).  Nor  should  this  rule 
extend  to  the  ease  of  a  party  whose 
interests  are  antagonistic  to  the 
party  for  whose  benefit  the  suit  is 
prosecuted.  MeCormick  v.  Elsea, 
107  Va.  473   (1907). 

43.  Stilson  v.  Leeman,  75  Me. 
412  (1883);  Miller  v.  Lincoln,  6 
Gray  556  (1856).  Where  defend- 
ant severally  pleaded  want  of  ju- 
risdiction, and  the  bill  was  dis- 
missed on  that  ground,  one  joint 
bill  of  costs  only  was  allowed. 
Pratt  V.  Bacon,  11  Pick.  496 
(1831).  In  a  bill  brought  by  di- 
rectors of  a  joint  stock  company 
to  wind  up  the  concern,  the  costs 
were  assessed  ratably  upon  the 
solvent  members  to  be  taxed  as  be- 
tween solicitor  and  client,  those 
represented  by  a  single  solicitor  to 


be  allowed  but  one  bill  of  costs. 
Tyrrell  v.  Washburn,  6  Allen  466 
(1863).  On  a  bill  against  two  per- 
sons to  redeem,  the  one  who  had  re- 
ceived rents  and  profits  more  than 
sufficient  to  pay  mortgage  debts 
was  ordered  to  pay  such  surplus 
and  the  costs.  Merriam  v.  Goss, 
139  Mass.  77  (1885).  In  Garwood 
V.  Hartley,  39  N.  J.  Eq.  78  (1884), 
where  several  defendants  pleaded 
separately  in  good  faith,  separate 
bills  of  costs  were  allowed.  But  in 
Whelan  v.  Exchange  Trust  Co.,  214 
Mass.  121  (1912)  only  one  bill  of 
costs  was  allowed. 

44.  McClellan  v.  Osborne,  51  Me. 
118  (1863);  Bailey  v.  Myrick,  36 
Me.  50  (1853). 

Chancery  rules  regarding  amend- 
ments generally  provide  when 
costs  shall  be.  paid  by  the  party 
amending.  See  Chapter  XVII, 
"Amendments,"  Sec.  308,  note  14, 
<jnte,  p.  528.  See  also  Nye  v.  Stew- 
art, 83  Vt.  521     (1910). 


878 


EQUITY  PRACTICE 


parties,  costs  wore  allowed  against  him  to  time  of  amend- 
ment.^^ 

§  529.  Costs  of  interlocutory  proceedings.  The  gen- 
eral rule  as  to  costs  upon  interlocutory  proceedings  is 
that  the  party  prevailing  therein  is  entitled  to  recover 
the  costs  of  such  proceeding  without  regard  to  who  pre- 
vails in  the  main  cause.^**  So  a  party  is  not  entitled  to 
costs  before  a  judge  at  chambers  on  an  interlocutory 
matter  in  which  he  did  not  prevail,  though  he  prevailed 
on  the  whole  case.^" 

§  530.  Costs  of  interpleader.  In  general,  the  plaintiff 
in  a  bill  of  interpleader  being  a  mere  stakeholder  is  en- 
titled to  be  paid  his  costs  out  of  the  fund  brought  into 
court,^^  but  where  the  bill  is  unnecessarily  filed  by  the 


45.  McClellan  v.  Osborne,  51  Me. 
118  (1863). 

46.  Stilson  v.  Leeman,  75  Me. 
412  (1883);  Stafford  v.  Bryan,  2 
Paige  (N.  Y.)  45  (1830).  They 
may  be  awarded  in  intermediate 
stages  of  a  cause  without  waiting 
for  a  final  decree.  Colehour  v. 
Bass,  143  111.  App.  530,  538  (1908). 
But  it  is  held  that  unless  expressly 
awarded  in  the  interlocutory  order, 
costs  abide  the  result  of  the  suit. 
Dean  v.  Williams,  2  Pinney  (Wis.) 
91  (1849).  It  is  sometimes  pro- 
vided by  statute  in  what  cases 
costs  shall  be  paid  upon  interlocu- 
tory proceedings.  Teun.  Code,  Sec. 
6309.  On  exceptions  to  master's 
report,  the  party  who  succeeds  is 
entitled  to  costs.  Sanford  v. 
Clarke,  38  N.  J.  Eq.  265  (1884). 

47.  Stilson  v.  Leeman,  75  Me.  412 
(1883). 

48.  Illinois.  Keller  v.  Bading, 
169  111.  152,  61  A.  S.  R.  159  (1898); 
Voight  V.  Kersten,  164  111.  314,  543 
(1896). 

Massachusetts.  Loring  v.  Thorn- 
dike,  5  Allen  257,  270  (1862). 


Michigan.  Wayne  County  Sav- 
ings Bank  v.  Airey,  95  Mich.  520 
(1893). 

New  Hampshire.  Farley  v.  Blood, 
30  N.  H.  354  (1854). 

New  Jersey.  Rahway  Inst.  v. 
Drake,  25  N.  J.  E.  220   (1874). 

Rhode  Island.  Manchester  Print 
Works  V.  Stimpson,  2  R.  I.  415 
(1853). 

West  Virginia.  Swiger  v.  Hay- 
man,  56  W.  Va.  123  (1904);  Ins. 
Co.  V.  Bank,  173  Fed.  390  (1909). 

The  plaintiff's  costs  usually  in- 
clude a  counsel  fee.  Loring  v. 
Thorndike,  5  All.  (Mass.)  257 
(1862);  Daniel  v.  Fain,  5  Lea 
(Tenn.)  258  (1880);  Caten  v.  Bldg. 
Assn.,  177  Fed.  996  (D.  C.  1909); 
McNamara  v.  Provident,  etc., 
Assn.,  114  Fed.  910,  52  C.  C.  A.  530 
(1902);  Louisiana  Co.  v.  Clark,  16 
Fed.  20   (1883). 

In  Illinois  only  statutory  costs 
can  be  given  to  the  plaintiff.  Mod- 
ern Workmen  v.  Conner,  129  111. 
App.  651  (1906).  But  in  Kingsbury 
V.  Andrews,  119  111.  App.  35  (1905), 
costs  including  solicitor's  fees  were 


COSTS 


879 


plaintiff/^  or  the  money  is  not  paid  into  court  by  Mm 
and  the  proceedings  are  irregular,  no  costs  will  be  al- 
lowed him.^'^  As  between  the  co-defendants  interplead- 
ing, the  one  whose  claim  is  held  to  be  groundless  is  com- 
pelled to  pay  the  costs,  not  only  of  the  defendant  prevail- 
ing,^^ but  also  usually  to  repay  the  costs  paid  to  the 
plaintiff  out  of  the  fund.''-  Ordinarily  on  a  bill  of  inter- 
pleader, no  costs  are  allowed  either  co-defendant  out  of 
the  fund.^^  But  where  a  bill  of  interpleader,  or  in  the 
nature  of  interpleader,  is  brought  to  allow  parties  to  in- 
terplead as  to  the  interpretation  of  doubtful  clauses  in  a 
will  and  their  respective  rights  thereunder,  the  costs  of 
all  parties  will  be  allowed  out  of  the  estate.^'* 

§  531.  Taxation  of  costs.  AVhen  costs  have  been  al- 
lowed by  the  court,  it  is  the  duty  of  the  clerk  or  other 
ministerial  officer  to  tax  the  costs.-^^     It  is  usually  the 


given  against  a  plaintiff.  And  so 
apparently  in  Massachusetts.  Cobb 
V.  Rice,  130  Mass.  231  (1881). 

49.  Bedell  v.  Hoffman,  2  Paige 
(N.  Y.)  199  (1830).  Where  the 
plaintiff  acts  eoUusively,  or  in  bad 
faith,  costs  of  the  successful  com- 
plainant may  be  taxed  against  him. 
Mich.,  etc.,  Plaster  Co.  v.  White,  44 
Mich.  25  (1880). 

50.  Savings  Inst.  v.  Emerson,  91 
Me.  535  (1898);  Railroad  Co.  v. 
Belfast,  77  Me.  445   (1885). 

51.  Illinois.  Dickinson  v.  Griggs- 
ville  Nat.  Bank,  111  111.  App.  183 
(1903). 

Michigan.  Michigan,  etc.,  Co.  v. 
White,  44  Mich.  25  (1903). 

New  Hampshire.  Farley  v. 
Blood,  30  N.  H.  .354  (1854). 

Bhode  Island.  Manchester  Print 
Works  V.  Stimpson,  2  R.  I.  415 
(1853). 

Virginia.  Beers  v.  Spooner,  9 
Leigh.  153. 


West  Virginia.  Swiger  v.  Hay- 
man,  56  W.  Va.  123  (1904). 

United  States.  McXamara  v. 
Provident  Sav.  L.  Assur.  Soc,  114 
Fed.  910   (1902). 

52.  Farley  v.  Blood,  30  N.  H.  354, 
374  (1854);  Manchester  Print 
Works  V.  Stimpson,  2  R.  I.  415 
(1853);  Swiger  v.  Hayman,  56  W. 
Va.  123  (1904);  McNamara  v.  Prov. 
vSav.  &  Loan  Assur.  Soc,  114  Fed. 
910  (1902).  In  Savings  Inst.  v. 
Emerson,  91  Me.  5.35  (1898),  the 
prevailing  claimant  was  not  al- 
lowed costs  on  account  of  the  ir- 
regularity of  the  proceedings. 

53.  Savings  Inst.  v.  Emerson,  91 
Me.  535  (1898).  Xor  to  losing 
claimant  where  the  only  cause  of 
the  suit  was  his  unjust  claim.  Cobb 
v.   Rice,   130  Mass.  231    (1881). 

54.  Morse  v.  Stearns,  131  Mass. 
389  (1881);  Towle  v.  Swasey,  106 
:\rass.  100  (1870). 

55.  Alabama.  Hair  v.  Logan,  10 
Ala.  431  (1846). 


880 


EQUITY  PRACTICE 


practice  for  the  attorney  of  the  party  entitled  to  costs  to 
present  an  itemized  memorandum  of  the  same  to  the 
clerk  for  his  allowance."'''  In  some  states  this  memo- 
randum must  be  accompanied  by  an  affidavit."'^  Notice  ^^ 
to  the  opi)osite  i^arty  is  then  given  and  a  hearing  had 
and  taxation  made  by  the  clerk.  From  tliis  taxation  an 
appeal  is  usually  allowed  to  the  chancellor  or  justice  who 
heard  the  case,  on  motion  for  re-taxation.^^     Costs  for 


Illinois.  Bogan  v.  Walker,  89 
111.  App.  457  (1900). 

Maine.     Eq.  Rule  33. 

Maryland.  Baltimore  v.  Balti- 
more County  Coram  'rs,  19  Md.  554 
(1862). 

Massachusetts.  R.  L.,  Chap.  203, 
See.  20. 

Michigan.  Rule  23;  Supreme 
Court  Rule  50. 

Mississippi.  Court  Officers  v. 
Fish,  7  How.  403  (1843). 

Pennsylvania.  Costs  on  interlocu- 
tory proceedings  are  taxed  by  the 
prothonotary.     Eq.  Rule  80. 

West  Virginia.  Deveny  v.  Cook, 
70  W.  Va.  282   (1912). 

United  States.    R.  S.,  Sec.  983. 

The  right  to  a  taxation  of  costs 
may  be  waived.  Crane  v.  Gurnee, 
75  N.  J.  Eq.  104  (1908). 

56.  Hyer  v.  Cars,  18  Fla.  694 
(1882);  Maine,  Eq.  Rule  33;  Michi- 
gan, Supreme  Court  Rule  50;  Spoor 
V.  Board  of  Riverside  County,  113 
Fed.  25   (1902). 

57.  Hyer  v.  Caro,  18  Fla.  694 
(1882);  Michigan,  Supreme  Court 
Rule  50;  United  States,  Rev.  Stat., 
Sec.  984. 

58.  Maine,  Eq.  Rule  33;  Massa- 
chusetts, R.  L.,  Chap.  203,  Sec. 
20;  Michigan,  Supreme  Court  Rule 
50. 

59.  Alabama.  Russell  v.  Pur- 
year,  139  Ala.  568  (1903). 


Illinois.  Miller  v.  Adams,  5  111. 
195  (1843). 

Maine.     Rule  33. 

Massachusetts.  R.  L.,  Chap.  203, 
Sec.  21. 

Michigan.  Beem  v.  Newaygo  Cir. 
Judge,  97  Mich.  491  (1893);  Rule 
23. 

Tennessee.  State  v.  Goodbar,  8 
Lea  451  (1881);  Code,  Sec.  3211- 
3212. 

West  Virginia.  Deveny  v.  Cook, 
70  W.  Va.  202   (1912). 

United  States.  Court  Officers  v. 
Fisk,  7  How.  403  (1843);  Keasbey 
&  Mattison  v.  American  Magnesia, 
etc.,  Co.,  149  Fed.  439   (1906). 

The  motion  should  point  out  spe- 
cifically the  items  objected  to. 
Genesee  County  Sav.  Bank  v.  Ot- 
tawa Cir.  Judge,  54  Mich.  305 
(1884).  It  should  state  the  ground 
of  the  objection.  Russell  v.  Pur- 
year,  139  Ala.  568   (1903). 

It  may  be  made  on  notice  after 
the  close  of  the  term  at  which  the 
judgment  was  rendered.  Chicago 
City  Ry.  Co.  v.  Burke,  102  111.  App. 
(1902). 

In  some  jurisdictions  the  appeal 
from  taxation  must  be  taken  with- 
in a  certain  time.  Snyder  v.  Mc- 
Carthy, 197  Fed.  166  (1912).  And 
if  it  is  made  in  vacation  it  must  be 
in  writing.  Coney  v.  Maling,  104 
Me.  332   (1908). 


COSTS  881 

depositions  are  not  taxable  when  the  deposition  is  not 
admissible/'"  Travel  and  attendance  should  be  taxed 
as  in  actions  at  law,  except  in  jurisdictions  where  there 
are  no  terms  of  court  in  equity  proceedings,  in  which 
case  costs  for  travel  and  attendance  depend  upon  hear- 
ings."^ 

§  532.  Costs  as  between  party  and  party  or  solicitor 
and  client.  There  are  two  methods  of  taxing  costs  known 
in  chancery  practice,  viz.,  either  as  between  party  and 
party,  or  as  between  solicitor  and  client.  In  taxing  costs 
as  between  party  and  party,  only  those  charges  are  al- 
lowed which  are  strictly  necessary  or  are  prescribed 
by  the  chancery  rules  in  the  table  of  fees.  This  is  the 
method  usually  employed  in  all  ordinary  litigation.  In 
taxation  as  between  solicitor  and  client,  a  party  may  be 
allowed  as  costs  of  suit,  in  addition  to  the  prescribed 
costs,  as  many  actual  expenditures,  including  counsel 
fees  and  other  charges  which  he  is  compelled  to  pay 
his  solicitor,  as  will  be  just  to  the  other  party  under  all 
the  circumstances."^  The  latter  method  is  employed 
where  costs  are  payable  out  of  a  fund  in  court,"^  or  by 

On  an  application  to  retax  costs  officers    for    similar    services    pro- 

the  court  can  only  consider  the  ob-  vided  a   general  but  not  an  exact 

jections    presented    to    the    clerk.  standard    for    guidance.      See    also 

Patterson  v.  Calhoun  Circuit  Judge,  Trustees   v.    Greenough,   105   U.   S. 

144  Mich.  416  (1906).  527,  26  L.  ed.   1157   (1882),  where 

60.  Stilsou  V.  Leeman,  75  Me.  412  the  court  held  that  a  creditor  suing 
(1883).  No  costs  are  allowed  to  be  on  behalf  of  himself  and  others 
taxed  for  drawing  interrogatories  could  not  include  in  his  expendi- 
unless  they  are  filed  in  the  clerk's  tures  to  be  taxed  upon  the  fund 
office.     Ibid.  which   he   secured   charges   for   his 

61.  Allan  v.  Allan,  101  Me.  153  own  personal  services  and  ex- 
(1907),  distinguishing  Stilson  v.  penses,  and  further  said  as  to  coun- 
Leeman,  note  60,  supra.  sel  fees:    "We  would  be  very  far 

62.  Dan.  Ch.  Pr.  (6th  Am.  ed.),  from  expressing  our  approval  of 
p.  1434.  This  does  not  mean  that  such  large  allowances  to  trustees, 
the  whole  amount  of  counsel  fees  receivers  and  counsel  as  have  some- 
charged  should  always  be  allowed.  times  been  made  and  which  have 
In  Frost  v.  Belmont,  6  Allen  justly  excited  severe  criticism." 
(Mass.)  164  (1863),  the  court  said  63.  Frost  v.  Belmont,  6  Allen, 
that  the  compensation  paid  public  152  (1863);  Dan.  Ch.  Pr.,  (6th  Am. 

Whitehouse  E.  P.  Vol.  I — 56 


882 


EQUITY  PRACTICE 


pro  rata  contribution  from  those  who  have  received  the 
benefit  of  the  litigation.*'^ 

§  533.  Decree  for  costs.  In  order  to  entitle  a  party  to 
costs,  there  must  usually  not  only  be  a  general  decree  in 
his  favor,  but  also  an  express  order  or  decree  for  his 
costs.*^  A  final  decree  which  is  silent  as  to  costs  is  as 
conclusive  a  bar  to  the  recovery  of  them  as  if  they  were 
affirmatively  disallowed,^*'  and  the  court  will  not  grant 
them  in  such  case  upon  a  subsequent  application  unless 
there  is  a  rehearing  on  the  merits,*'^  The  decree  should 
also,  it  would  seem,  expressly  order  execution  for  costs 
to  issue,  since  no  process  issues  in  equity  without  an 
order  therefor.  Where  a  bill  is  dismissed  for  want  of 
jurisdiction,  there  is  a  conflict  of  authority  over  the 
power  of  the  court  to  award  costs.**^ 


ed.),  p.  1435-6.     And  see  generally 
Sees.  526  and  530  supra. 

64.  Tyrrell  v.  Washburn,  6  Allen 
(Mass.)  466  (1863). 

65.  Eickert  v.  Suddard,  184  111. 
149  (1900);  Stone  v.  Locke,  48  Me. 
425  (186^);  Gladding  v.  Warner,  36 
Vt.  54  (1863);  Coburn  v.  Shroeder, 
8  Fed.  521   (1881). 

The  award  of  costs  must  be  made 
by  the  court  and  not  by  the  clerk. 
Amer.  Diamond  Drill  Co.  v.  Sulli- 
van Mach.  Co.,  32  Fed.  552  (1885). 

Unless  expressly  allowed  by  stat- 
ute, an  appeal  does  not  lie  for  cor- 
rection of  errors  in  the  award  of 
costs  alone.  Joslyn  v.  Parlin,  54 
Vt.  670  (1881);  Ashley  v.  Kiger,  3 
Rand.  (Va.)  165  (1825);  Du  Bois 
V.  Kirk,  158  U.  S.  58,  39  L.  ed.  895 
(1894). 

If  an  appeal  can  only  be  sus- 
tained on  the  ground  of  error  in  the 
award  of  costs  the  decree  will  not 
be  reversed.  Du  Bois  v.  Kirk,  158 
U.  S.  58,  39  L.  ed.  895  (1894). 

66.  Alvord  v.  Stone,  78  Me.  296 


(1886);  Coburn  v.  Schroeder,  8  Fed. 
521   (1881). 

67.  Stone  v.  Locke,  48  Me.  425 
(1861).  A  decree  of  dismissal  mak- 
ing no  order  for  costs  is  reversible, 
Bryant  v.  Taylor,  157  111.  App.  227 
(1910). 

68.  In  the  following  jurisdictions 
either  by  express  statutory  author- 
ity, or  otherwise,  costs  may  be 
awarded. 

Alabama.  Hilliard  v.  Brown,  103 
Ala.   318    (1893). 

Illinois..  Kinman  v.  Bennett,  2 
111.  326   (1836). 

Maine.  Thomas  v.  Thomas,  98 
Me.  184  (1903). 

Massachusetts.  Davis  v.  Hast- 
ings, 8  Cush.  313  (1851). 

Mississippi.  Balfour  v.  Mitchell, 
12  Sm.  &  M.  629  (1899). 

Pennsylvania.  McDonald  v. 
Jones,  11  Pa.  Dist.  675. 

Tennessee.  Nashville  v.  Wilson, 
88  Tenn.  407  (1889)    (Stat.). 

Vermont.  Solomon  Colony  v. 
Maeck,  8  Vt.  114  (1836). 


COSTS 


883 


§  534.  Security  for  costs.  The  rules  or  statutes  of 
many  states  provide  that  the  plaintiff  in  certain  cases 
must  give  security  for  costs.''*-*  The  usual  ground  for 
requiring  such  security  is  non-residence  in  the  state, 
either  at  the  time  of  filing  the  bill  '^"  or  during  the  pend- 
ency of  the  suit.'^^    In  a  few  states,  however,  the  plaintiff 


The  contrary  is  the  rule  in  the 
following  jurisdictions. 

Michigan.  Crane  v.  Eeeder,  23 
Mich.  92  (1871). 

New  Hampshire.  Eames  v.  Car- 
lisle, 3  N.  H.  130    (1824). 

Bhode  Island.  Hopkins  v.  Brown, 
5  R.  I.  357  (1858). 

United  States.  Citizens'  Bank 
V.  Cannon,  164  U.  S.  319,  41  L.  ed. 
451   (1896). 

69.  It  has  been  held  that  the 
power  to  require  security  for  costs 
exists  independent  of  statute. 
Goodenough  v.  Burton,  146  Mich. 
50  (1906) ;  Newman  v.  Landrine,  14 
N.  J.  Eq.  291,  82  Am.  Dec.  249 
(1862).  And  where  a  statute  pro- 
vides for  security  in  cases  at  law, 
the  rule  of  the  statute  will  be  fol- 
lowed in  equity.  Pratt  v.  Tenner, 
8  R.  I.  40   (1864). 

70.  Alabama.  Ex  parte  Jones, 
83  Ala.  587  (1887). 

Maine.  R.  S.,  Ch.  83,  Sees.  6,  7, 
and  8. 

Massachusetts.  R.  L.,  Ch.  173, 
Sec.  39. 

Maryland.  Watson  v.  Glassie,  95 
Md.  658  (1902);  Code,  Art.  16,  Sec. 
152. 

Michigan.  Goodenough  v.  Bur- 
ton, 146  Mich.  50  (1906);  Rule  3. 

New  Hampshire.    Rule  103. 

New  Jersey.  Shuttleworth  v. 
Dunlap,  34  N.  J.  Eq.  488   (1881). 

Rhode  Island.  Rosenfeld  v. 
Swarts,  22  R.  I.  315  (1900);  Gen. 
Stat.  1896,  Chap.  247,  Sec.  2. 


Virginia.  Evans  v.  Bradshaw,  10 
Gratt.  207   (1855). 

West  Virginia.  Nease  v.  Cape- 
hart,  15  W.  Va.  299  (1879). 

The  rule  does  not  apply  to  non- 
resident defendants  in  the  absence 
of  express  statutory  provision. 
Stein  V.  McGrath,  128  Ala.  175 
(1900)  (even  though  plaintiff  in  a 
cross-bill);  Hall  v.  Foulkes,  9 
Heisk.  (Tenn.)  745  (1872).  But  see 
Badger  v.  Taft,  58  Vt.  585  (1886). 

An  intervenor  may  be  required 
to  give  security  for  costs  when  non- 
resident. Leazar  v.  Cota,  43  N.  H. 
81;  Chease  v.  Greenough,  88  Pa.  403 
(1879). 

A  non-resident  is  one  who  resides 
out  of  the  state  within  the  mean- 
ing of  the  statute  of  foreign  at- 
tachments and  of  the  statute  per- 
mitting service  by  publication. 
Dean  v.  Cannon,  37  W.  Va.  123 
(1892).  Or  one  who  has  no  usual 
abode  within  the  state  at  which 
process  may  be  served.  Gillen  v. 
Wilmington,  2  Marv.  (Del.)  154 
(1895). 

71.  Alabama.      Ex   parte   R.    Co., 
124  Ala.  547  (1899). 
Maine.     R.  S.,  Ch.  83,  Sec.  6. 
Massachusetts.     R.   L.,   Ch.   173, 
Sec.  41;  Dooley  v.  Beane,  213  Mass. 
601   (1913). 

New  Hampshire.  Leazar  v.  Cota, 
43  N.  H.  81   (1861). 

New  Jersey.  Newman  v.  Lan- 
drine, 14  N.  J.  Eq.  291   (1862). 


884 


EQUITY  PRACTICE 


must  either  file  security  for  costs  in  all  cases  irrespective 
of  his  residence'-  or  may  be  ordered  to  give  it  where 
he  has  no  property  ^^  or  when  the  court  may  deem  it  just 
and  reasonable.'^^ 

In  some  jurisdictions  the  security  must  be  filed  at  the 
time  of  filing  the  bill,"^  while  in  others  the  court  on  mo- 
tion of  the  defendant  may  order  that  security  be  given 
within  a  certain  time  or  the  bill  be  dismissed.'^ ^  The 
motion  must  be  made  in  some  states  at  the  earliest  op- 
portunity after  knowledge  of  the  facts,'^'^  in  others  at 
any  time  before  trial/ ^  or  final  decree,^^  where  plaintiff 


72.  In  Tennessee  all  plaintiffs 
must  file  security  for  costs  before 
commencing  suit.  Code,  Sees.  3187, 
3192,  4339. 

73.  Phelps  V.  Funkhouser,  40  111. 
27  (1866);  Kurd's  111.  St.,  1905,  Ch. 
33,  Sec.  4  (where  plaintiff  was  un- 
able to  pay  costs) ;  Pratt  v.  Tenner, 
8  R.  I.  40  (1864)  (want  of  prop- 
erty). 

74.  Gookin  v.  Upham,  22  N.  H. 
38  (1850). 

75.  Alabama,  etc.,  E.  Co.  v.  Har- 
ris, 25  Ala.  232  (1854)  (corpora- 
tion); Ala.  Code  1907,  Sec.  3687 
(either  at  commencement  of  suit  or 
within  such  time  as  court  may  di- 
rect); Mass.,  R.  L.,  Ch.  173,  Sec. 
39;  Mich.,  Rule  3.  N.  H.  Rule  103 
provides  that  security  for  costs 
must  be  given  at  the  time  of  filing 
the  bill  or  within  fifteen  days 
thereafter. 

76.  Alabama.  Anniston  First 
Nat.  Bank  v.  Cheney,  120  Ala.  117 
(1897). 

Maine.    R.  S.,  Ch.  83,  Sec.  6. 

Maryland.  Watson  v.  Glassie,  95 
Md.  658   (1902). 

Massachusetts.  R.  L.,  Ch.  173, 
Sec.  40;  Feneley  v.  Mahoney,  21 
Pick.  212  (1838). 


West  Virginia.  Enos  v.  Stans- 
bury,  18  W.  Va.  479   (1881). 

An  order  that  security  be  filed 
within  a  certain  time  or  the  bill  be 
dismissed  does  not  operate  as  a  dis- 
missal upon  default  of  plaintiff 
without  a  further  order  of  court. 
Ex  parte  Bradshaw,  174  Ala.  243 
(1911). 

In  Virginia  and  West  Virginia  a 
suggestion  of  non-residence  is  made 
on  the  record  or  rule  docket.  Enos 
V.  Stanbury,  18  W.  Va.  479  (1881); 
Miller  v.  Norfolk,  etc.,  R.  Co.,  47 
Fed.  264  (1891). 

Proceedings  in  the  case  may  be 
stayed  until  past  and  present  costs 
are  secured.  Clark  v.  Bay  Cir. 
Judge,  154  Mich.  483  (1908). 

77.  Wilkinson  v.  Cox,  228  111.  306 
(1907);  Leazar  v.  Cota,  43  N.  H. 
81  (1861). 

In  Maine  it  should  be  filed  at  the 
first  term.    R.  S.,  Ch.  83,  Sec.  6. 

A  motion  made  at  the  hearing 
comes  too  late.  Murphy  v.  Fair- 
weather,  77  S.  E.  321  (W.  Va. 
1912). 

78.  Anniston  First  Nat.  Bank  v. 
Cheney,  120  Ala.  117  (1897). 

79.  Watson  v.  Glassie,  95  Md. 
658  (1902);  Miller  v.  Norfolk,  etc., 
R.  Co.,  47  Fed.  264  (1891). 


COSTS 


885 


is  not  prejudiced.  It  should  be  accompanied  by  an  affi- 
davit of  the  facts  on  which  it  is  based  where  they  are 
not  shown  by  the  record. ^"^ 

The  form  of  security  is  usually  either  a  bond  or  an 
indorsement  of  the  bill  by  some  sufficient  inhabitant  of 
the  state,  or  a  personal  recognizance  by  the  latter,  or  a 
deposit  of  money  in  court.^^ 

In  cases  where  security  for  costs  is  required  on  account 
of  non-resident,  it  is  sufficient  if  one  of  several  plaintiffs 
is  an  inhabitant  of  the  state. ^-  Where  one  person  sues 
for  the  use  of  another,  the  beneficial  plaintiff  must  give 
security  if  he  is  a  non-resident,  and  the  nominal  plaintiff 
a  resident,  and  so  where  the  beneficial  plaintiff  resides 
within  the  state  no  security  is  required  of  a  nominal  non- 
resident plaintiff,^^ 

The  proper  method  of  taking  advantage  of  a  failure  to 


80.  O'Connell  v.  Eea,  51  111.  206 
(1869);  Boggs  v.  Inter-American 
Mining  &  Smelting  Co.,  10.5  Md.  371 
(1907);  Holt  V.  Winters,  30  Fed. 
29  (1887).  Contra,  Osborne  v.  Pa. 
R.  Co.,  159  Fed.  301   (1908). 

81.  Bond.  Barton  v.  McKinney, 
3  Stew.  &  P.  (Ala.)  274  (1833); 
State  V.  McCarty,  60  Md.  373 
(1883);  Kendall  v.  Fitts,  22  N.  H. 
1  (1850);  Parks  v.  Allen,  2  Head 
(Tenn.)   522   (1859). 

Deposit.  Stribling  v.  Kentucky 
Bank,  48  Ala.  451  (1872);  State  v. 
McCarty,  60  Md.  373  (1883);  Smith 
V.  Perkins,  139  Mich.  463  (1905). 

Recognizance.  Parks  v.  Smith,  2 
Head  (Tenn.)  523  (1859). 

Endorsement  of  the  bill.  Maine, 
R.  S.,  Ch.  83,  Sec.  6;  Ferguson  v. 
Gardner,  92  Me.  245  (1898);  Mass., 
R.  L.,  Ch.  173,  Sec.  39;  .Johnson  v. 
Sprague,  183  Mass.  102  (1903). 

Docket  entry  by  party  to  be 
bound.  State  v.  McCarty,  60  Md. 
373   (1883). 


82.  Alabama.  Endora  Min.,  etc., 
Co.  V.  Barclay,  122  Ala.  506  (1898). 

niinois.  Wood  v.  Goss,  24  111. 
626   (1860). 

Maine.     R.  S.,  Ch.  83,  Sec.  6. 

Maryland.  Mayer  v.  Tyson,  1 
Bland.  559   (1828). 

Massachusetts.  R.  L.,  Ch.  173, 
Sec.  39. 

New  Hampshire.  Scruton  v. 
Deming,  36  N.  H.  432   (1858). 

Contra,  Vehicle  Co.  v.  Gallagher, 
145  Fed.  394  (1906). 

83.  Stillman  v.  Dunklin,  48  Ala. 
175  (1872) ;  Ex  parte  Bush,  29  Ala. 
50  (1856);  O'Connell  v.  Rea,  51 
111.  306  (1869);  Smith  v.  Robinson, 
11  111.  119  (1849) ;  State  v.  Layman, 
46  Md.  190  (1876).  Contra,  Rich- 
ards V.  Works,  56  W.  Va.  510 
(1904),  holding  that  where  a  resi- 
dent administrator  is  suing  for 
damages  for  death  by  wrongful  act, 
the  non-resident  beneficiaries  need 
not  give  security. 


886 


EQUITY  PRACTICE 


give  security  for  costs  is  by  motion  to  dismiss.^*  The 
right  to  security  may  be  waived  by  the  defendant  by 
taking  steps  in  the  cause  without  applying  for  security 
or  by  failing  to  prosecute  his  motion  to  dismiss.^^  Un- 
less the  statute  expressly  stipulates  that  a  failure  to  file 
security  within  the  designated  time  will  result  in  dis- 
missal of  the  suit  without  further  order  of  court,*^''  the 
security  will  be  received  even  after  a  motion  to  dismiss  is 
made  but  before  it  is  acted  upon  by  the  court.^'  It  has 
also  generally  been  held  that  where  the  court  may  fix 
the  time  for  filing  security,  it  may  extend  the  time  when- 
ever justice  requires  it.^^ 


84.  Stillman  v.  Dunklin,  48  Ala. 
175  (1872);  Pressey  v.  Snow,  81 
Me.  288  (1889);  Seaver  v.  Allen,  48 
N.  H.  473  (1869);  Cowan  v.  Don- 
aldson, 95  Tenn.  322   (1895). 

A  motion  to  dismiss  will  not  usu- 
ally be  granted  without  a  prior  rule 
on  the  plaintiff  to  file  the  security.- 
Wood  V.  Goss,  24  111.  626  (1860); 
Overstreet  v.  Davis,  24  Miss.  393 
(1852);  Enos  v.  Stanbury,  18  W. 
Va.  477   (1881). 

85.  Illinois.  Hamilton  v.  Dunn, 
22  111.  259   (1859). 

Maryland.  State  v.  McCarty,  60 
Md.  373   (1883) 

Massachusetts.  Carpenter  v.  Al- 
drich,  3  Met.  58    (1841). 

Mississippi.  Wright  v.  Stanford, 
100  Miss.  856  (1911). 

New  Hampshire.  Leazar  v.  Cota, 
43  N.  H.  81  (1861). 

New  Jersey.  Reed  v.  Benzine- 
ated  Soap  Co.,  72  N.  J.  Eq.  622 
(1907). 

Tennessee.  Cowan  v.  Donaldson, 
95  Tenn.  322  (1895). 

West  Virginia.  Dean  v.  Cannon, 
37  W.  Va.  123  (1892). 

86.  Alabama.  Stillman  v.  Dunk- 
lin, 48  Ala.   175    (1872). 


Illinois.  Farnsworth  v.  Agnew, 
27  111.  41   (1861). 

Maine.  Pressey  v.  Snow,  81  Me. 
288  (1889). 

Massachusetts.  Haywood  v. 
Main,  18  Pick.  226  (1836). 

New  Hampshire.  Pettingill  v. 
McGregor,  12  N.  H.  179,  190  (1841). 

United  States.  Sutro  v.  Simpson, 
14  Fed.  370  (1882). 

87.  Alabama.  Whitaker  v.  San- 
ford,  13  Ala.  522  (1848). 

Michigan.  McGill  v.  Beitner,  114 
Mich.  646  (1897). 

Mississippi.  Wright  v.  Stanford, 
100  Miss.  856  (1911). 

Tennessee.  Sharp  v.  Miller,  3 
Sneed  42  (1855). 

Virginia.  Anderson  v.  Johnson, 
32  Gratt.  558  (1879),  (security  al- 
lowed to  be  filed  on  reversal  and 
remand). 

West  Virginia.  Dean  v.  Cannon, 
37  W.  Va.  123  (1892). 

88.  Alabama.  Ex  parte  Jones,  83 
Ala.  587   (1887). 

Mississippi.  Kyle  v.  Stinson,  13 
Sm.  &  M.  301   (1850). 

Rhode  Island.  Eosenfield  v, 
Swarts,  22  R.  I.  315   (1900). 


COSTS 


887 


As  an  incident  to  the  right  to  require  security  for 
costs,  the  court  may  at  a  later  time  require  further 
security  where  there  has  been  a  change  in  circumstances 
since  the  first  order  was  made.^^ 

It  is  sometimes  provided  that  a  plaintiff  may  prosecute 
an  action  as  a  poor  person  and  be  excused  from  furnish- 
ing security  for  costs.''*^ 

Sureties  for  costs  in  the  lower  court  are  liable  for 
costs  on  appeaP^  unless  the  bond  is  restricted  in  its 
wording  ^^  and  conversely  a  surety  for  costs  on  appeal 
will  be  held  for  the  costs  in  both  courts.^^ 

Sometimes  by  statute  or  chancery  rule  the  attorneys 
are  made  personally  liable  for  the  payment  of  fees  of 
the  clerk  or  officers  of  the  court.^^ 

§  535.  Costs  on  appeal.  Costs  on  a  chancery  appeal 
are  generally  discretionary  with  the  appellate  court,^^ 


Tennessee.  Irvins  v.  Mathis,  11 
Humph.  603  (1850). 

89.  Alabama.  Eeid  v.  Brasher, 
7  Port.  448   (1838). 

Illinois.  Ball  v.  Bruce,  27  •  111. 
332  (1862). 

Maine.     R.  S.,  Ch.  83,  Sec.  8. 

Massachusetts.  R.  L.,  Ch.  173, 
Sees.  42,  45. 

Michigan.  Craig  v.  CoUingwood, 
137  N.  W.  117  (1912). 

New  Hampshire.  Whitcher  v. 
Whitcher,  10  N.  H.  440   (1839). 

Tennessee.  Greer  v.  Whitfield, 
4  Lea  85   (1879). 

United  States.  Martin  v.  Haz- 
ard Power  Co.,  93  U.  S.  302,  23  L. 
ed.  885  (1876);  Deprey  v.  Thomp- 
son-Houston Elec.  Co.,  66  Fed.  22 
(1894). 

90.  Wetz  V.  Greffe,  71  111.  App. 
313  (1897);  Osiel  v.  Osiel,  71  N.  J. 
Eq.  189  (1906);  Lewis  v.  Smith,  21 
R.  L  324  (1899);  Miller  v.  Norfolk, 
etc.,  R.  Co.,  47  Fed.  264  (1891). 

91.  Martin    v.    Kelley,    59    Miss. 


652   (1882);  McCloskey  v.  Barr,  79 
Fed.  408   (1898). 

92.  Clark  v.  Quackenboss,  28  111. 
112  (1863). 

In  Ogg  V.  Leinert,  1  Heisk. 
(Tenn.)  40  (1870),  it  was  held  that 
a  security  bond  for  costs  in  a  chan- 
cery case  must  be  construed  to 
cover  costs  in  both  courts. 

93.  Expanded  Metal  Co.  v.  Brad- 
ford, 177  Fed.  604   (1910). 

94.  Maine,  Rule  34. 

95.  Alabama.  Fronbar  v.  John- 
son, 20  Ala.  477  (1852). 

Illinois.  Romberg  v.  McCormick, 
194  111.  205   (1901). 

Maryland.  Daub  v.  Mason,  5 
Md.  612   (1854). 

Michigan.  See  v.  Derr,  57  Mich. 
369   (1883). 

Rhode  Island.  Gen.  Laws  1896, 
Ch.  247,  Sec.  20. 

Tennessee.  111.  Cent.  R.  Co.  v. 
Southern  Seating  Co.,  104  Tenn. 
568,  78  Am.  St.  Rep.  926,  50  L.  R. 
A.   729    (1900). 


888 


EQUITY  PRACTICE 


although  the  prevailing  party  on  the  appeal  is  usually 
awarded  his  costs.  Thus  where  the  decree  is  affirmed 
the  appellee  is  entitled  to  costs,^*'  except  where  it  is 
unjust  that  they  should  be  taxed  against  the  losing 
party.^'  So  the  costs  of  appeal  are  ordinarily  allowed 
the  appellant  upon  a  reversal  of  a  decree,^^  but  the  court 
may  at  its  discretion  change  the  rule  to  fit  the  particular 
case.^^ 

Where  both  parties  appeal  and  the  decree  is  affirmed 
or  reversed  as  to  both,  no  costs  will  be  allowed  either 
party,^^*'    or    an    apportionment    of    the    costs    will    be 


Costs  cannot  be  awarded  to  par- 
ties who  have  not  appealed.  Pow- 
ers V.  Golden  Lumber  Co.,  43  Mich. 
469  (1880).  Nor  against  one  not 
a  party  to  the  appeal.  Eenehan  v. 
McAvoy,  116  Md.  356,  367  (1911); 
Schluderbert  v.  Eoberson,  60  Md. 
602   (1883). 

As  to  interpretation  of  a  decree 
for  costs  see  Daub  v.  Mason,  5  Md. 
612   (1854). 

96.  Taber  v.  Shattuck,  55  Mich. 
370  (1884);  Frum  v.  Fox,  58  W. 
Va.  334  (1905). 

97.  As  where  appellee  fails  to 
file  a  brief.  Brick  v.  Brick,  65 
Mich.  230  (1887).  Or  a  pro  forma 
decree  is  entered  without  appel- 
lant 's  knowledge.  Owens  v.  Bar- 
roll,  88  Md.  204  (1898).  Or  the 
case  is  a  doubtful  one.  Price  v. 
Price,  46  Mich.  68  (1881);  Goble 
V.  Grant,  3  N.  J.  Eq.  629  (1835). 
Or  the  court  is  evenly  divided. 
"Wright  V.  Smith,  44  Mich.  560 
(1880).  Or  even  where  an  appeal 
is  taken  from  an  unappealable  or- 
der, if  there  are  equitable  consid- 
erations. Beilman  v.  Poe,  120  Md. 
444   (1913). 

98.  A^'an  Zanten  v.  City  of  Grand 
Haven,  174  Mich.  282  (1913) ;  Kel- 
ler v.  Swarts,   137  Pa.  65    (1890); 


Dotz  V.  Village  of  Johnson,  84  Vt. 
15  (1910);  Bradstreet  v.  Potter,  16 
Pet.  (U.  S.)  317,  10  L.  ed.  978 
(1842). 

99.  Alabama.  Fronbar  v.  John- 
son, 20  Ala.  477  (1852). 

Illinois.  Wilson  v.  Lyon,  51  111. 
530   (1870). 

Maryland.  Daub  v.  Mason,  5  Md. 
612   (1854). 

Michigan.  Williams  v.  Guarde, 
34  Mich.  82   (1876). 

New  Jersey.  Nessler  v.  Indus- 
trial Land  Development  Co.,  70  N. 
J.  Eq.   804    (1906). 

Pennsylvania.  Kueker  v.  Sun- 
light Oil  &  Gasoline  Co.,  230  Pa. 
528   (1911). 

West  Virginia.  Conklyn  v.  Shen- 
andoah Milling  Co.,  68  W.  Va.  567 
(1911). 

United  States.  Bradstreet  v. 
Potter,  16  Pet.  317,  10  L.  ed.  978 
(1842). 

Where  a  case  is  remanded  to  be 
amended  to  conform  to  the  opin- 
ion of  the  court,  the  rule  in  Mary- 
land is  to  leave  the  costs  of  both 
courts  subject  to  final  decree.  Per- 
kins V.  Emery,  55  Md.  27  (1880). 

100.  Sheldon  v.  Bennett,  44  Mich. 
634  (1880);  Deslious  v.  Transatlan- 


COSTS 


made.^  Where  there  is  a  partial  reversal  of  the  decree  on 
appeal,  the  appellant  is  generally  awarded  costs  ^  but 
where  the  modification  is  only  in  a  minor  particular  costs 
are  generally  denied  to  either/^  the  court  using  its  discre- 
tion under  the  circumstances  of  each  case.^ 

Where  a  party  to  an  appeal  has  caused  unnecessary 
costs  by  his  conduct  of  the  suit  or  by  encumbering  the 
record  with  superfluous  recitals,  he  will  be  obliged  to 
assume  the  extra  expense  either  through  a  denial  of  all 
costs  of  the  appeal  or  by  a  diminution  of  his  bill.^ 

On  an  appeal  by  several  parties  to  a  decree  those  who 
are  successful  can  only  tax  such  parts  of  the  record  and 
brief  as  were  necessary  to  present  their  case.*^ 


tiques,  210  U.  S.  95,  52  L.  ed.  973 
(1907). 

Where  plaintiffs  and  one  defend- 
ant appeal  and  the  decree  is  af- 
firmed in  favor  of  defendant,  the 
costs  of  printing  the  record  will  be 
divided  among  the  appellants  but 
the  defendant  can  recover  the  cost 
of  the  brief  and  a  solicitor 's  fee 
against  plaintiffs.  Hamilton  v. 
Deinzer,  157  Mich.  484,  485  (1909). 

1.  Steward  v.  Traverse  City 
State  Bank,  168  Mich.  258,  268 
(1912). 

2.  Cowles  v.  Morgan,  34  Ala.  535 
(1859);  Miller  v.  Harmon,  173 
Mich.  560  (1913);  Newberry  v. 
Button,  114  Va.  95  (1912);  North- 
ern Trust  Co.  V.  Snyder,  77  Fed. 
818   (1897). 

3.  Grand  Union  Tea  Co.  v.  Dodds, 
104  Mich.  50,  55  (1908);  Newkirk 
V.  Newkirk,  56  Mich.  525  (1885); 
New  England  Ry.  Co.  v.  Carnegie 
Steel  Co.,  75  Fed.  54  (1896). 

4.  Tyus  V.  DeJanette,  26  Ala.  280 
(1855);  Day  v.  Davis,  213  HI.  53 
(1904);     Perkins     v.     Perkins,     16 


Mich.  164  (1877);  HI.  Cent.  E.  Co. 
V.  Southern  Seating  Co.,  104  Tenn. 
568,  78  Am.  St.  Rep.  926,  50  L.  R. 
A.   729    (1900). 

5.  Bessemer  Iron  &  Land  Co.  v. 
Doak,  152  Ala.  166  (1907);  Smith 
V.  Brittenham,  94  HI.  624  (1880); 
Tower  v.  Somerset  Tp.,  143  Mich, 
195  (1906);  Vliet  v.  Wyckoff,  42  N. 
J.  Eq.  642  (1887). 

In  Griffeth  v.  Dale,  109  Md.  697 
(1909)  costs  on  reversal  were  ap- 
portioned because  appellant  in- 
serted irrelevent  matter  in  the  rec- 
ord. 

6.  Merritt  Tp.  v.  Harp,  141  Mich. 
233  (1905). 

Where  several  parties  have  con- 
flicting or  different  interests  in  the 
same  decree,  the  correct  practice  is 
to  agree  upon  the  respective 
amounts  they  are  to  pay  for  the 
transcript,  or  if  that  cannot  be 
done  to  have  the  clerks  of  the  ap- 
pellate and  lower  courts  ascertain 
the  respective  amounts.  Boyce  v. 
McLeod,   107  Md.   1    (1908). 


890  EQUITY  PRACTICE 

In  some  states  the  statutes  provide  penalties  in  the 
form  of  increased  costs  for  frivolous  appeals." 

7.  Starr   &   Curt.   Ann.   111.   Stat.  Sec.    13;    Pa.,    Act    May    19,    1897, 

1896,  Ch.  33,  1123;  Baker  v.  Prebis,  Sec.  21;  Richardson  v.  Richardson, 

185  111.  191   (1900);  Me.  R.  S.,  Ch.  193   Pa.   279    (1899). 
79,  Sec.  37;  Mass.  R.  L.,  Ch.  156, 


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